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[2006] NSWCCA 305
Court of Criminal Appeal (NSW)
2006-03-30
Spigelman CJ, Kirby J, Howie J
Original judgment source is linked above.
CITATION: REGINA v Matthew James ELLIOTT and Bronson Matthew BLESSINGTON [2006] NSWCCA 305
JUDGMENT OF: Spigelman CJ at 1; Kirby J at 100; Howie J at 208
DECISION: 1 Leave to appeal out of time refused; 2 Leave to reopen the original appeal refused.
CATCHWORDS: CRIMINAL LAW - Appeal - Jurisdiction to reopen appeal - Where orders of previous appeal not perfected - Whether leave to reopen should be granted - To be determined by reference to the dominant consideration of avoiding a miscarriage of justice - CRIMINAL LAW - Appeal - Jurisdiction - Whether Court of Criminal Appeal can hear appeal from a recommendation that prisoner never be released - Whether recommendation a "sentence" - Where recommendation subsequently given effect by legislation - Recommendation not an "order of the court of trial" - Criminal Appeal Act 1912, s 2 - CRIMINAL LAW - Appeal - Against sentence - Life Sentence - Where recommendation that prisoner never be released - Where recommendation given subsequent legislative effect - Court cannot consider appeal on the basis that the consequences of the life sentence are significantly more onerous as a result of subsequent legislation - It would be an inappropriate exercise of judicial power to remove the legislative criterion upon the basis of which Parliament enacted constitutionally valid legislation - WORDS & PHRASES - "order", "order made by the court of trial", "sentence"
Child Protection (Offenders Registration) Act 2000 Crimes (Administration of Sentences) Act 1999: s 154A(3) Crimes (Life Sentences) Amendment Act 1989 Crimes (Sentencing Procedure) Act 1999: ss 21A, 44(5), 61; Sch 1 cll 2, 4, 7 Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 Crimes Act 1900: ss 19, 19A, 431B, 442, 463, 474P Crimes Amendment (Mandatory Life Sentences) Act 1996 Crimes Legislation Amendment (Existing Life Sentences) Act 2001 Crimes Legislation Amendment (Sentencing) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912: ss 2, 5, 6, 10 Criminal Appeal Rules 1952: rr 50A, 51, 52, 53 Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987: Sch 3 Periodic Detention of Prisoners Act 1981: s 24(1) Prisons (Serious Offenders Review Board) Amendment Act 1989 Prisons Act 1952: ss 60, 61 Sentencing (Life Sentences) Amendment Act 1989 Sentencing Act 1989: s 13A, 22P; Sch 2A, Pt 3 cl 8(1) Sentencing Amendment (Transitional) Act 1997 Sentencing Legislation Further Amendment Act 1997
Al-Kateb v Godwin (2004) 219 CLR 562 American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 Baker v Campbell (1983) 153 CLR 52 Baker v The Queen [2004] HCA 45; 78 ALJR 1483 British Railways Board v Pickin [1974] AC 765 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 Grierson v The King (1938) 60 CLR 431 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Lodhi v Regina [2006] NSWCCA 121 McMaster v The Queen [2004] WASC 52; 144 A Crim R 428 Pantorno v The Queen (1989) 166 CLR 466 Prebble v Television New Zealand Ltd [1993] 3 NZLR 513 Re Application by Attorney General (No 3 of 2002) (2004) 61 NSWLR 305 R v Blessington (2005) 153 A Crim R 205 R v Ehrenburg (Unreported, NSWCCA, 14 December 1990) R v Frugtniet (Unreported, NSWCCA and CA, 25 Jun 1998) CASES CITED: R v Gust [2000] NSWCCA 287 R v Jamieson, Elliott and Blessington (1992) 60 A Crim R 68 R v Keir [2004] NSWCCA 106 R v KNL (2005) 154 A Crim R 268 R v Lapa (No 2) (1995) 80 A Crim R 398 R v Munday [1981] 2 NSWLR 177 R v Postiglione (1997) 98 A Crim R 134 R v Rae (No 2) [2005] 157 A Crim R 182 R v Reardon (No 2) (2004) 60 NSWLR 454 R v Saxon (1998) 101 A Crim R 71 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 R v Slade [2005] NZCA 19; 2 NZLR 526 R v Sommerville (1995) 36 NSWLR 184 R v Stephens (1990) 48 A Crim R 323 R v Vasich (1998) 99 A Crim R 262 Roper v Simmons, 543 US 551, 125 S Ct 1183 (2005) Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73
Matthew James Elliott (Applicant) PARTIES: Bronson Matthew Blessington (Applicant) Regina (Respondent)
T Game SC, S Pritchard (Appellant Elliott) COUNSEL: B Walker SC, R Burgess (Appellant Blessington) R Cogswell SC, A Mitchelmore (Respondent)
D Giddy (Appellant Elliott) SOLICITORS: S O'Connor (Appellant Blessington) S Kavanagh - Solicitor for Public Prosecutions (Respondent)
SPIGELMAN CJ KIRBY J HOWIE J
Friday 22 September 2006 REGINA v Matthew James ELLIOTT REGINA v Bronson Matthew BLESSINGTON
The Applicants were convicted and sentenced to life imprisonment in 1990 for the murder of Ms Janine Balding. At the time of sentence, the sentencing judge, Newman J, recommended that the Applicants should never be released (the "Recommendation"). At the time it was made, the Recommendation had no legal effect.
In 1992, the Court of Criminal Appeal dismissed an appeal by each Applicant against the severity of his life sentence (the "First Appeal"). During the course of the First Appeal, each Applicant sought to challenge the Recommendation, however they were unable to do so because the Recommendation had no legal force, and therefore did not fall within the Court's appellate jurisdiction.
Legislative changes in 1997, 2001 and 2005 gave legal effect to the Recommendation. Whereas, at the time of sentence, it was possible that the Applicants might one day be released on licence, it is now the case that, as a result of the legislation, the Applicants will almost certainly never be released.
The Applicants submit that, as a consequence of the legislative changes, the Recommendation has become a "sentence", within the meaning of the Criminal Appeal Act 1912, and is now amenable to this Court's jurisdiction. Accordingly, each Applicant seeks leave to appeal out of time against the Recommendation.
Alternatively, the Applicants seek leave to reopen the First Appeal on two bases. First, it is asserted that, by not being permitted to challenge the Recommendation at the First Appeal, each Applicant was denied procedural fairness. Secondly, it is asserted that this Court has jurisdiction to reopen the appeal on the basis that the orders of the First Appeal have never been perfected.
Each Applicant asks this Court to quash the Recommendation or, alternately, to quash their life sentence and impose a determinate sentence.
Finally, the Applicants challenge the constitutional validity of provisions in Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 that would give effect to the Recommendation even if it were quashed. The provisions are said to be incompatible with Chapter III of the Commonwealth Constitution . HELD Per Spigelman CJ, Kirby and Howie JJ agreeing Jurisdiction to Re-open the Appeal 1 The orders dismissing the First Appeal were not perfected. Accordingly, this Court has jurisdiction to grant leave to reopen the appeal. [44]-[45], [147], [208] R v Stephens (1990) 48 A Crim R 323 ; R v Lapa (No 2) (1995) 80 A Crim R 398; R v Postiglione (1997) 98 A Crim R 134 applied.
2 It is unnecessary to resolve whether leave to reopen should be granted on the grounds of denial of procedural fairness. [47], [147], [208]
3 The Recommendation did not have any effect at the time it was made, and therefore was not an "order of the court of trial". Accordingly, it is not a "sentence" for the purposes of the Criminal Appeal Act 1912, and is not within this Court's jurisdiction. [98], [146], [208]
4 Both the discretion to grant leave to re-open the appeal, and to grant leave to appeal out of time, ought to be determined by reference to the dominant consideration of avoiding a miscarriage of justice. [48], [149], [208]
5 In the exercise of the discretion to grant leave, it is relevant to have regard to all the circumstances of each case. Of particular importance is the subjective case of each Applicant advanced in the First Appeal. [49], [208]
6 The substantive provisions in issue represent a constitutionally valid exercise of legislative power that makes reference to the Recommendation as a legislative criterion. Each of the two bases upon which each applicant seeks leave invites this Court to remove the basis upon which the Parliament has enacted constitutionally valid legislation. The invitation to act in this way would constitute a failure to respect the right and powers of the Parliament to legislate. The Court should not exercise a discretion in such a way as to undermine the purpose and object of valid legislation with the effect, indeed for the purpose, that the intention of Parliament will be frustrated. The Parliament of New South Wales has enacted a consequence which, in the exercise of the tradition of mutual respect in our constitution system, this Court should respect. [54]-[58], [75]-[81], [208] Baker v The Queen [2004] HCA 45; 78 ALJR 1483 considered. Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; British Railways Board v Pickin [1974] AC 765; Prebble v Television New Zealand Ltd [1993] 3 NZLR 513 applied.
7 Legislative change impinging on sentences has often been enacted. It is not the case that such changes which are adverse to a prisoner have the consequence that procedural fairness has been denied. If there was a denial of procedural fairness it was committed by Parliament not by a court. [72], [73], [208]
Baker v The Queen [2004] HCA 45; 78 ALJR 1483 considered.
8 There has been no miscarriage of justice. [82], [208]
9 The Court may have regard to the changes to the legislation in determining whether the sentence is manifestly excessive. [173] R v Munday [1981] 2 NSWLR 177; R v Ehrenburg (Unreported, NSWCCA, 14 December 1990); R v Vasich (1998) 99 A Crim R 262; R v Keir [2004] NSWCCA 106; R v Sommerville (1995) 36 NSWLR 184 considered.
10 It is relevant that the Applicants have had no opportunity of addressing the appropriateness or otherwise of the Recommendation, having regard to their youth. [175]
11 There has arguably been a miscarriage of justice, and leave should be granted. [178]
12 By virtue of the youth of the offenders, their crime could not be considered in the worst class. Accordingly, the life sentences imposed were manifestly excessive. [182]
13 The appeals against sentence should be allowed, the life sentence of each Applicant should be quashed, in lieu thereof each Applicant should be sentenced to 28 years imprisonment with a non-parole period of 21 years. [207]
14 It is not the function of this Court to review a course adopted by Parliament to protect the public, even if it were considered by members of this Court to be unreasonable or offensive to individual rights. [205]
15 It is not appropriate for this Court to exercise its jurisdiction in order to obstruct Parliament in the valid exercise of its power to legislate with respect to convicted persons. [210]
SPIGELMAN CJ KIRBY J HOWIE J
Friday 22 September 2006 REGINA v Matthew James ELLIOTT REGINA v Bronson Matthew BLESSINGTON Judgment 1 SPIGELMAN CJ: The Applicants, Bronson Matthew Blessington and Matthew James Elliott, seek leave to appeal out of time against the life sentences imposed upon them by Newman J on 18 September 1990. Those sentences have already been the subject of an appeal to this Court: R v Jamieson, Elliott and Blessington (1992) 60 A Crim R 68 (the "First Appeal"). Due to amendments to the legislative regime relating to life sentences that have occurred subsequent to the First Appeal, the Applicants assert that there now exists a sentence against which they have not yet appealed, and from which an appeal to this Court lies. Alternatively, they submit that the earlier appeal can be, and should be, reopened. 2 At the time that the Applicants were sentenced, Newman J made the following remark (the "Non-Release Recommendation" or "the Recommendation"): "So grave is the nature of this case that I recommend that none of the prisoners in this matter should ever be released." 3 At the time the Non-Release Recommendation was made it had no legal effect. However, as a result of subsequent legislation, now contained in Sch 1 to the Crimes (Sentencing Procedure) Act 1999, the Recommendation carries the effect that it is much less likely that the Applicants will ever be released from prison than would have been the case had the Recommendation not been made. The Applicants seek to appeal both the life sentence and the Non-Release Recommendation.
The Facts 4 In the First Appeal, Gleeson CJ, with whom Hope AJA and Lee AJ agreed, set out the facts in the following terms at 69-71: "[L]ate in the afternoon of 8 September 1988, a group of five 'street kids' travelled by train from Central Station to Sutherland Station and waited in the car park there with the object of abducting and raping some young woman who might present herself as a target of opportunity. The group of five consisted of a female named Carol Arrow and four males. The four males were Wayne Wilmot, the appellant Elliott, the appellant Blessington and a person named 'Shorty'. All five were persons who had no fixed place of abode, and who were accustomed to sleeping on park benches or in empty railway trains. Elliott was aged 16, and Blessington a little less than 15. Shorty was several years older than the others and, as his name suggests, was of small stature. The first target identified by the group was Kristine Anne Mobberley, whose car was parked at the Sutherland Station car park. She arrived to collect her car at about 5.15 pm. She saw the group of young persons, and one of them approached her and began a conversation. He had a knife in his hand and asked for money. She quickly got into her car and drove away. She went to the Sutherland Police Station and reported the incident. On her way home she drove past the same car park and saw the same group of young persons, this time menacing Janine Balding. Ms Balding was forced into her own car at knifepoint. The five drove off with her in her car. After some rearrangement of seating positions, Arrow and Wilmot occupied the front seat and Elliott, Blessington and Shorty were in the back with Ms Balding. It was common ground that, in the course of the journey, she was brutally sexually assaulted. The car pulled off the road near Minchinbury. Ms Balding was taken out of the car. Her legs were bound with a rope taken from the boot of her car, and tied to her neck. A scarf was tied to her face and stuffed into her mouth. She was carried over a fence and across a paddock to a nearby dam, held underwater and drowned. The Crown alleged that all three of Elliott, Blessington and Shorty participated in that activity. Whilst those events were going on, Arrow and Wilmot remained in the front seat of Ms Balding's car, engaged in their own amorous pursuits. All five persons left the area in Ms Balding's car and later abandoned it. They went to Mt Druitt. Together they went to an auto teller machine where they used Ms Balding's keycard to withdraw a sum of money from her bank account. Two rings and a watch had been stolen from the body of Ms Balding. A witness was called at the trial to give evidence that the appellant Elliott had tried to sell him two rings. Ms Balding's fiancé gave evidence identifying one of those rings as her engagement ring. Blessington and Elliott went by train to Gosford on 9 September 1988. There they disposed of some of Ms Balding's credit cards, stole another car, and drove back to Sydney. They were arrested in Sydney on the same day." 5 The Applicants were tried and convicted for, inter alia, the murder of Janine Balding. Each was sentenced to penal servitude for life.
The First Appeal 6 On 17 February 1992, this Court granted the Applicants leave to appeal against the sentences imposed by Newman J, but dismissed the appeals: R v Jamieson, supra. The Court rejected the submission that the sentences were manifestly excessive, finding each to be "well within" the permissible range (at 80). 7 With respect to the Non-Release Recommendation, Gleeson CJ, with whom the other members of the Court agreed, said at 80: "With respect to the learned sentencing judge, however, I have a problem concerning his recommendation that the appellants should never be released. Counsel were 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 not support the recommendation made by Newman J. This is not intended to be a recommendation by me that either appellant should be released at some time in the future. It is simply intended as an expression of my view that the making of any recommendation on that subject in these circumstances is not appropriate."
The Life Sentences Regimes 8 At the time the offence was committed, the provision governing punishment for murder was s 19 of the Crimes Act 1900. That section was in the following terms: "19 Whosoever commits the crime of murder shall be liable to penal servitude for life."
9 Pursuant to s 463 of the Crimes Act, a person sentenced to life imprisonment had the opportunity to be released on licence, which licence was granted by the Governor. The Release on Licence Board, established by s 60 of the Prisons Act 1952, had the function of making recommendations for the grant of licences to prisoners sentenced to penal servitude for life, subject to special conditions set out in s 61 of the Prisons Act. 10 Three Acts came into force on 12 January 1990, with effect after the committal procedures against the Applicants, but before their conviction and sentence. The Acts changed the life sentences regime in a number of ways. 11 First, the Crimes (Life Sentences) Amendment Act 1989 repealed s 19 of the Crimes Act and replaced it with a new s 19A in the following terms: "19A (1) A person who commits the crime of murder is liable to penal servitude for life. (2) A person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life. … (5) [T]his section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply." 12 Accordingly, by force of s 19A(5), the sentencing of the Applicants was governed by the old s 19, and it was pursuant to that section that they were sentenced. "Life", in their cases, did not "mean life". 13 Secondly, the Prisons (Serious Offenders Review Board) Amendment Act 1989 repealed s 463 of the Crimes Act, and amended the Prisons Act so as to abolish the Release on Licence Board, and establish a Serious Offenders Review Board. 14 Thirdly, the Sentencing (Life Sentences) Amendment Act 1989 inserted s 13A into the Sentencing Act 1989 which provided: "13A(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… (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) Any such person is not eligible to make an application unless the person has served at least 8 years of the sentence concerned. …" 15 The Applicants' life sentences, not being for the terms of their natural lives under s 19A, fell within the definition of an "existing life sentence". Accordingly, they were, at the time of sentence by Newman J, subject to a regime which entitled each to apply to the Supreme Court, after serving eight years imprisonment, for the determination of a minimum term and an additional term. 16 On 3 April 2000, the Sentencing Act 1989 was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999. The provisions contained in s 13A at that time were re-enacted, relevantly to the same effect, in Sch 1 to the Crimes (Sentencing Procedure) Act 1999, given effect by s 44(5) of that Act. The only change of significance reflected the return to a regime of head sentences and non-parole periods, in substitution for the 1989 regime of minimum and additional terms. 17 The new Schedule applied to an "existing life sentence", which the sentences in issue in these proceedings plainly were. Clause 2(1) provided: "2(1) … an offender serving an existing life sentence may apply to the Supreme Court for the determination of a term and a non-parole period for the sentence."
The Non-Release Recommendation 18 In 1997, two Acts of the New South Wales Parliament gave legal effect to the Non-Release Recommendation given by Newman J. 19 The Sentencing Legislation Further Amendment Act 1997 amended s 13A(1) by inserting the following definition: " 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." 20 It is common ground that Newman J's Recommendation is a "non-release recommendation" within the Act. 21 Moreover, s 13A(3) was replaced, and a new s 13A(3A) inserted, in the following terms: "13A(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." 22 A new s 13A(10A) was inserted requiring the Supreme Court, when considering an application for a determinate sentence, "to have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned". A similar provision was added with respect to the Parole Board's consideration of applications for release on parole: s 22P. 23 These changes did not apply to the Applicant Blessington. On 28 November 1996, Blessington had applied for redetermination of his life sentence pursuant to s 13A as it then stood. This application engaged the transitional provisions contained in Pt 3 of Sch 2A to the Sentencing Act, which provided that the new provisions did not apply to applications pending at the time of commencement of the Sentencing Legislation Further Amendment Act 1997: cl 8(1). 24 However, the 1997 amendments did apply to the Applicant Elliott, who had made no application for redetermination by this time. 25 The transitional provisions affecting the Applicant Blessington were short-lived. Eleven days after the commencement of the Sentencing Legislation Further Amendment Act 1997, the Sentencing Amendment (Transitional) Act 1997 commenced. That Act amended the transitional provisions so that the changes to s 13A made by the Sentencing Legislation Further Amendment Act 1997 also applied to any application made prior to its commencement. The application of the Applicant Blessington was the only such application pending at the time these further amendments were made. 26 The relevant provisions, by then found in Sch 1 to the Crimes (Sentencing Procedure) Act 1999, were amended in 2001 by the Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (the "2001 Act"). 27 First, the 2001 Act increased from 20 years to 30 years the period of time that must elapse before a person the subject of a non-release recommendation may apply for a determination of sentence. 28 Secondly, the 2001 Act removed the Supreme Court's jurisdiction to set a specified term of sentence for a person the subject of a non-release recommendation, though it retained the Court's jurisdiction to set a non-parole period. Accordingly, a person the subject of a non-release recommendation could be released on parole, but the parole would continue for the remainder of his or her life. 29 Finally, the 2001 Act narrowed the circumstances in which a person the subject of a non-release recommendation could be released on parole. The Act inserted a new s 154A into the Crimes (Administration of Sentences) Act 1999 in the following terms: "154A Serious offenders the subject of non-release recommendations … (3) After considering the application, the Parole Authority may make an order directing the release of the offender on parole if, and only if, the Parole Authority: (a) is satisfied (on the basis of a report prepared by the Chief Executive Officer, Justice Health) 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."
The Judgment of Dunford J 30 In August 2004, the Applicant Blessington filed a Notice of Motion in the Supreme Court seeking determination of a number of questions concerning the application to him of the amendments to the life sentences scheme outlined above. 31 On 15 April 2005, Dunford J delivered judgment: See (2005) 153 A Crim R 205. His Honour found that, notwithstanding the subsequent amendments made to the life sentences scheme, Blessington's application made in 1996 entitled him to have his sentence determined in accordance with s 13A of the Sentencing Act 1989 and that, having served over eight years, he was eligible to have the application for redetermination heard. He would be required to establish special reasons pursuant to s 13(3A) of the Act. 32 Moreover, his Honour made a number of remarks relevant to the application presently before this Court. His Honour said at 215: "[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 (NSW), 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."
The Legislative Response 33 Following Dunford J's judgment, the New South Wales Parliament passed the Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 (the "2005 Act"). 34 The amendments made two important changes. First, it was made explicit that any application for determination of a life sentence made by a person subject to a non-release recommendation before 8 May 1997, that had not yet been determined, was not to be determined until the offender had served at least 30 years of the sentence, and was to be determined in accordance with Sch 1. The only application to which this provision applied was that of the Applicant Blessington. This had the effect of putting the Applicant Blessington, who had made such an application, in the same position as the Applicant Elliott, who had not. There is no constitutional challenge to the validity of this part of the 2005 Act. 35 Secondly, the 2005 Act amended the definition of "non-release recommendation" so that the words underlined hereunder were added: "non-release recommendation , in relation to an offender serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the sentencing court that (or to the effect that) the offender should never be released from imprisonment, and includes any such recommendation, observation or expression of opinion that (before, on or after the date of assent to the Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 ) has been quashed, set aside or called into question. " 36 The Applicants seek to challenge, if the Court gets to that point, the constitutional validity of the underlined portion of this definition. 37 Each Applicant's position is that he must serve 30 years of his life sentence before being permitted to apply for a determination of his sentence. Upon such an application being made, he must then demonstrate "special reasons" to justify such a determination. Were such an application to be granted, this Court would be limited to setting a non-parole period, following which the Parole Board could only release him on parole if it is satisfied that, amongst other requirements, he is either "in imminent danger of dying, or is incapacitated to the extent that he … no longer has the physical ability to do harm to any person". Clearly, the position of each Applicant is substantially worse than the position he was in at the time of the First Appeal.
The Appeal to this Court 38 Each Applicant seeks leave to appeal out of time against the life sentence imposed by Newman J and against the Non-Release Recommendation. Alternatively, each Applicant seeks to reopen his previous appeal. Each Applicant asks this Court to quash the Recommendation. Alternatively, each Applicant asks this Court to quash the life sentence and impose a determinate sentence. 39 Each Applicant tendered evidence about his experience in prison and matters relevant to his prospects of rehabilitation. Counsel for the Applicants relied on the material, in the usual way, as pertinent only to the exercise by this Court of the sentencing discretion, if the Court decides to intervene. 40 The application for leave to reopen the earlier appeal turns on one of two alternative gateways. First, that the earlier order of this Court has not been perfected. Secondly, that each Applicant was denied natural justice because he had no opportunity to make submissions about the non-release recommendation. 41 Once a gateway is established, that application and the application for leave to appeal out of time, with respect to the Non-Release Recommendation, turn on the proposition that, by reason of legislative intervention, there is a new "sentence", namely the Recommendation, which was not open to be considered by this Court in the First Appeal. 42 Furthermore, each Applicant seeks to appeal from the life sentence on the basis that that sentence now has consequences that could not have been envisaged at the time it was imposed. On this basis, it is submitted, it is open to this Court to conclude that the life sentences are manifestly excessive, contrary to the conclusion of the First Appeal. 43 If the Court were to quash the Non-Release Recommendation, but not vary the life sentence, each Applicant challenges the constitutional validity of the change made to the definition of "non-release recommendation" by the 2005 Act, in reliance on Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. It will not be necessary to consider this issue. 44 With respect to the application to reopen the earlier appeal, it does appear that the order of this Court was not perfected. Pursuant to r50A, r51, r52 and r53 of the Criminal Appeal Rules 1952, the perfection of this Court's order required entry on the indictment. (See R v Stephens (1990) 48 A Crim R 323 at 327; R v Lapa (No 2) (1995) 80 A Crim R 398 at 402; R v Postiglione (1997) 98 A Crim R 134 at 136-137.). 45 This Court has inspected the indictment upon which the Applicants were jointly tried. The orders of this Court in the First Appeal have not been entered thereon. Mr R Cogswell SC drew attention to holes in the top corner of the original indictment which may suggest some other document was once attached to it. This is not an adequate basis for an implication that Order 53 had been complied with. Each Applicant has established that this Court has jurisdiction to grant leave to reopen. 46 Each Applicant relied, in the alternative, for leave to reopen on the grounds of a denial of procedural fairness. There is authority to the effect that a Court can reopen proceedings on this basis. (Pantorno v The Queen (1989) 166 CLR 466 esp at 474, 484; R v Saxon (1998) 101 A Crim R 71 at 76, 82; R v Gust [2000] NSWCCA 287 at [4] to [6].) However, this has been questioned. (See R v Reardon (No 2) (2004) 60 NSWLR 454 at [40]-[41]; R v Rae (No 2) [2005] 157 A Crim R 182 [146]-[151].) Administratively, any such difficulty could have been resolved by appointing the judges of the Court of Criminal Appeal to sit in the Court of Appeal in order to exercise this Court's supervisory jurisdiction. (See R v Frugtniet NSWCCA and CA (unreported) 25 Jun 1998.) 47 By reason of the conclusion I have reached on the perfection point, it is unnecessary to resolve this issue.
The Discretion to Grant Leave 48 With respect to both Applicants, each of the applications requires the exercise of a discretion to grant leave - either to appeal out of time or to reopen the earlier appeal. In the circumstances of the present cases the exercise of each discretion should be determined by similar considerations. In each case the dominant consideration, in my opinion, is whether leave should be granted in order to avert a miscarriage of justice. 49 In the exercise of the discretion to grant leave it is relevant to have regard to all the circumstances of each case. Of particular significance is the subjective case of each Applicant advanced in the First Appeal. In oral submissions counsel for each Applicant accepted that the updating material in affidavit evidence was relevant only if this Court came to resentence. Suggestions in the written submissions that the new evidence could be used for other purposes, including the exercise of the discretion to grant leave, were withdrawn. 50 The submissions accepted that each Applicant had committed a horrendous crime. Nevertheless, their youth and family background and, in the case of Blessington, his mental capacity, were relied upon as relevant to the exercise of the discretions to grant leave. The subjective case of each Applicant was summarised by Newman J in his remarks on sentence of 18 September 1990 at pp9-12. 51 With respect to the Applicant Blessington, this Court's attention has also been drawn to a report of Mr Terry Halloran, Superintendent of Minda Detention Centre, dated 14 September 1989, and a report of Mr Peter Irons, a Senior Counsellor with the Department of Family and Community Services ("DFCS"), dated 13 September 1990. The Court's attention was also drawn to extracts of earlier reports set out in the report of Mr Irons: a report of Dr Barnard, psychiatrist, dated 24 July 1987 (at p6), and Mr J Devereux, District Officer of DFCS, dated 1 September 1988 (at p8). 52 With respect to the Applicant Elliott, this Court's attention was drawn to a report of Lee Mansfield and John Curtinsmith of DFCS, dated 10 September 1990; a report of T J Gould, Superintendent of Minda Detention Centre, dated 20 August 1990; reports of Sandra Trevethan, Principal of Minda School for Specific Purposes ("Minda School"), dated 27 July 1990 and 31 August 1990; and a report of Anne Manning, Relieving Principal of Minda School, dated 2 November 1989. The Court's attention was also drawn to extracts of earlier reports contained in the report of Dr John Howard, dated 7 August 1990, to which Newman J referred. 53 I accept that it is appropriate to take these matters into account in the exercise of the discretion. 54 The constitutional validity of the legislative scheme under consideration, in its form prior to the 2005 amendments, was challenged in Baker v The Queen [2004] HCA 45; 78 ALJR 1483. By majority, the High Court rejected the challenge to the 1997 amendments which imposed, in the case of a person the subject of a non-release recommendation, a period of 20 years before an application for redetermination of a life sentence could be made, together with the statutory requirement of special circumstances in s 13A(3A). 55 The majority joint judgment of McHugh, Gummow, Hayne and Heydon JJ, referred to the observations of Gleeson CJ in R v Jamieson supra, with respect to the absence of any statutory basis for the making of a non-release recommendation, but noted that observations of this character had long been made by trial judges (see at [46]-[48]). Their Honours concluded: "[49] It follows that there is nothing repugnant to the notion of judicial power in the taking of such a past recommendation as a legislative criterion for the operation of a subsequent regime such as that provided for the Supreme Court by s 13A."
This focus on the adoption by Parliament of a "legislative criterion" is of significance in the present case. 56 Gleeson CJ, in his concurring judgment, elaborated upon the legitimacy of the legislative choice when he said: "[8] When the 1997 amendments to s 13A, the subject of the present constitutional challenge, were made, there was a limited number of prisoners serving life sentences who had been the subject of non-release recommendations. Their identities, and the circumstances of their crimes, were widely known. The New South Wales Parliament decided that, in the scheme of s 13A, they should be treated as exceptional cases. It made special, and different, provision for them. As a matter of legislative power, the Parliament was entitled to do so. Senior counsel for the appellant acknowledged in the course of argument that, if Parliament had simply named the persons in question and excluded them from the operation of s 13A, then his Kable argument would not have arisen. It might be argued, as a matter of legislative policy, that it was unreasonable of Parliament to single out for special, and disadvantageous, treatment those prisoners who had been sentenced by judges who were willing to make non-release recommendations when others who had also committed heinous crimes might have escaped such recommendations because of the inclinations of a particular sentencing judge. As a matter of policy, I see the force of that argument, but its significance in terms of legislative power is another matter. Parliament may have taken the view that at least those people in the position of the appellant should be subject to a special regime, and if others whose crimes were just as serious were given the benefit of more favourable treatment then that would have to be accepted. It is evident from the parliamentary material referred to in argument that the view was taken that public opinion demanded some form of legislative recognition of the fact that, included amongst prisoners serving life sentences, there were people whose crimes were so extreme that sentencing judges had been moved to recommend that they should never be released. As a matter of legislative power, it was open to the New South Wales Parliament to enact legislation reflecting such opinion. The distinction drawn by the legislature was not arbitrary. If, for any reason, one wanted to identify prisoners who had committed the most heinous crimes, searching for those who had been the subject of a non-release recommendation would be at least a good start. In the view of some people, it would be unreasonable to stop there, and unfair to discriminate solely on that ground. Choices of that kind, however, are generally within legislative competence. [9] Persons who were the subject of a non-release recommendation had one thing in common: the legislature knew that the judges who sentenced them thought that their crimes were so serious that, in their cases, imprisonment for life should mean exactly that. There may have been other cases where sentencing judges held the same opinion, but did not express it. Even so, the fact that a particular judge expressed such an opinion is, as a matter of fact, indicative of the gravity of the conduct of an offender. It was within the power of the Parliament to select such an expression of opinion as an indication that the offending was of the most serious kind. The Parliament was entitled to create a special regime for the most serious offenders, and to select as the criterion for distinguishing the most serious offenders the making of a non-release recommendation. The selection was not arbitrary, and the criterion was not irrelevant. If it was unfair, its unfairness could have been thought to lie in the consequence that some other offenders of a most serious kind received more favourable treatment. [10] There is a further consideration that Parliament is entitled to take into account when legislating about crime and punishment. Parliament is not functioning in a hermetically sealed environment. The public are aware that there are some prisoners whose crimes have attracted judicial condemnation of the utmost severity, and that such condemnation, at least in the past, has sometimes taken the form of an expression of opinion that a particular prisoner should remain in custody for life. The complex legal and political issues that surrounded the 1989 'truth-in-sentencing' legislation in New South Wales resulted from a notorious difference between the appearance and the reality of some sentences. When Parliament decided to permit prisoners who had been sentenced for 'life' to apply for determinate sentences, which to the public would almost certainly appear to be lower than their original sentences, it was foreseeable that it would want to address, and perhaps reserve for special treatment, the most extreme cases, however those cases were to be identified." 57 The decision in Baker establishes that the substantive provision in issue in the present case represents a constitutionally valid exercise of legislative power. Parliament has acted with respect to a small number of cases, including the two presently before the Court, so as to subject those offenders to a special regime, referred to in the joint judgment in Baker as a "legislative criterion" (at [49]) and by the Chief Justice as a "special and different provision" (at [8]). 58 Each of the Applicants seeks to have this Court retrospectively remove him from this regime by altering his status so that he no longer satisfies the "legislative criterion" or the "special and different provision". 59 It is only the statutory force subsequently given to the each Non-Release Recommendation which places each Applicant in a different position to that in which he found himself at the time of the First Appeal. If this Court quashed each Recommendation, then the principle of finality would require this Court to refuse to reopen the first Appeal. (Grierson v The King (1938) 60 CLR 431 at 436-432.) However, the Applicants also submit that the Court should reconsider the result of the First Appeal because the consequences of the life sentence, if the Recommendation is not quashed, are significantly more onerous than they were at the time of the First Appeal. 60 It is pertinent to note that one of the factors referred to by this Court in the First Appeal was the existence of the right to apply to this Court for a determinate sentence. In R v Jamieson supra at [80] Gleeson CJ said: "Notwithstanding the youth of the appellants, the imposition of a life sentence was well within the range of his Honour's sentencing discretion, and was appropriate to the horrifying objective facts of the case and to the subjective circumstances of the appellants. No error of fact or of principle has been shown in relation to Newman J's remarks on sentences, and the sentences cannot be characterised as manifestly excessive. Under the relevant legislation, the appellants will have a 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." 61 In the respects outlined above, this position has now changed by force of statute. The Applicants submit that Gleeson CJ's reference to the possibility of a right to apply for a determinate sentence was critical, or at least contributory to, the conclusion of this Court that the imposition of a life sentence was not manifestly excessive. 62 I note that, notwithstanding all of the statutory changes to which I have referred, nothing has occurred which would prevent the exercise in the future of the royal prerogative of mercy. (See s 474P Crimes Act 1900.) Accordingly, it cannot be said that there is no avenue for the release of each Applicant. 63 I have set out, at [7] above, Gleeson CJ's observations in the First Appeal concerning the inappropriateness of the making of the recommendation that the Appellants should never be released. That paragraph appeared in the judgment immediately after the paragraph I have quoted above, at [62], with respect to the conclusion that the sentence was not manifestly excessive. 64 However, in the subsequent paragraph his Honour made it clear that he had in mind that a variety of regimes could exist in the future when he said, to repeat, that a sentencing judge should not "seek to anticipate decisions that might be made by other persons, and in other proceedings, or under other legislation, over the ensuing decades". His Honour encompassed within these considerations executive decision-making such as the exercise of the prerogative of mercy. His Honour also referred to the regime, as it then existed, which entitled an offender to make an application to a judge of the Supreme Court for a determinate sentence. 65 I accept that a court in determining whether to impose a life sentence, or a court of criminal appeal when determining whether such a sentence is excessive, is entitled to have regard to the fact, if it be such, that 'life means life' or virtually so. 66 This Court should approach the applications before it on the basis that the Court in the First Appeal regarded the possibility of future release as a relevant consideration when determining that the life sentence was not manifestly excessive. However, this Court should also proceed on the basis that, when taking that consideration into account, the Court understood that the existing regime could change in the future, as indeed the then very recent experience of legislative change itself demonstrated. There was nothing to suggest that any such change, for example with respect to conditions of sentence or eligibility for parole, would necessarily be favourable, rather than unfavourable, to an offender. 67 The legislative means by which the change has been effected does not alter the nature of the original sentence. As the joint judgment in Baker said, after referring to the release on license provisions then found in s 493 of the Crime Act 1900: "[29] Whilst s 463 remained in force, the judicial power to impose sentence upon a person convicted of murder was confined: the only sentence that could be passed was that the offender suffer penal servitude for life. Upon passing that sentence the judicial power was exhausted. Whether the offender served the sentence in prison or at large was a matter which then was to be decided by the Executive, not a court. If the Executive exercised the power given by s 463, the offender obtained a mercy. But in no sense (whether as a matter of substance or as a matter of form) can later legislation, altering the circumstances in which such mercy could or would be extended to a prisoner sentenced to life imprisonment, make that sentence of life imprisonment more punitive or burdensome to liberty. Whether the power to reduce the effect of a life sentence is given to a court (as the legislation now in question did) or is retained by the Executive, the original sentence passed on the offender could not be and was not extended or made heavier." 68 Furthermore, Gleeson CJ said in Baker supra at [7]: "… sentencing and custodial regimes … are almost always affected in various ways by legislative, judicial, and administrative decision-making. To take the most obvious example, conditions of incarceration alter from time to time with changes in executive policy. In New South Wales, the system of release on parole historically involved both judicial and administrative decisions, and the interaction of that system with administrative procedures concerning remission of sentence gave rise to the problems that were addressed by the Sentencing Act 1989 (NSW). The history of those problems, and an explanation of the legislative solution, may be seen in R v Maclay . As the judgment in that case makes clear, and as should in any event be obvious, legislative and administrative changes to systems of parole and remissions usually affect people serving existing sentences. The longer the original sentence, the more likely it is that an offender will be affected by subsequent changes in penal policy. It is unnecessary to go into the history of legislation in New South Wales concerning sentencing in cases where imprisonment for life is fixed as the penalty, whether that be mandatory or the maximum. There have been a number of such changes in recent years. Some of the history before 1997 was set out by Hunt CJ at CL in Kalajzich . An important practical matter was the administrative practice of release on licence, which was referred to in s 13A(9)(a). It was the knowledge by sentencing judges of that practice that gave rise to non-release recommendations of the kind referred to in s 13A(1), (3), and (3A). I expressed my concerns about such a recommendation in Jamieson, Elliott and Blessington . Nevertheless, there were widely known cases in which judges made such recommendations. Other judges, without making non-release recommendations, made denunciatory remarks on sentencing, or pointed references to particular features of a case, which might have indicated a view that a sentence of life imprisonment should continue until death. It is to be remembered that prisoners who were released on licence continued to serve their sentences in the community. The licences were often subject to stringent conditions, breach of which could result in return to prison. Furthermore, release did not always mean release into the community; it might mean release into a psychiatric institution, sometimes without any realistic expectation of recovery. Statistical information about the average time spent in prison by persons sentenced to life imprisonment is of little assistance unless it is broken down in a manner that deals with the most heinous crimes. The expectations of the appellant at the time of his sentencing would have to be related, not to the 'average' case, but to the worst cases and, in particular, to cases where non-release recommendations were made. In 1990, the Crimes Act 1900 (NSW) was amended by the introduction of s 19A, which provided that a person sentenced to penal servitude for life for the crime of murder was to serve that sentence for the term of the person's natural life." 69 In the present case the Applicants seek to rely on the adverse change in the position of the Applicants that has occurred by force of legislation. Mr B Walker SC, who appeared for the Applicant Blessington, expressed the change in terms of the difference between the possibility of serving the rest of one's life in prison and the practical certainty of serving the rest of one's life in prison. 70 I proceed on the basis that the practical certainty that life will mean life, in the case of the Applicants, would have been a relevant consideration favourable to the Applicants in the First Appeal.
71 Each Applicant has submitted that he has been denied natural justice because he has never had an opportunity to make submissions about whether the Court should make a Non-Release Recommendation. Nor has he had an opportunity to make submissions about whether a life sentence should be imposed (or would be manifestly excessive) where such a sentence has the consequences for which the Parliament has now provided. 72 As was made clear in Baker, legislative change impinging upon sentences has often been enacted. It is not the case that such changes which are adverse to a prisoner have the consequence that procedural fairness has been denied in hindsight or retrospectively. If there was any denial of procedural fairness, it was committed by the Parliament, not by a court. 73 As the joint judgment said in Baker, of s 13A of the 1989 Act in its original form, the "rights and remedy" created by the Act "were subsequent to, and independent of, the determination of the criminal guilt of the appellant and the imposition of the sentences" (at [32]). The 1997 Amendments did not change this position. 74 This Court is a court of error. The circumstances in which it is entitled to review a sentence in the light of subsequent events, which is normally the province of the executive arm of government, are very limited. (See R v Munday [1981] 2 NSWLR 177; R v Ehrenburg (NSWCCA, unreported, 14 December 1990).) The circumstances should be even more limited, if there are any at all, where the Parliament and not the executive has acted. The fact that the Parliament has subsequently passed valid legislation impinging upon the sentence is not a subsequent event which permits reconsideration of a sentence. To do so would in my opinion, constitute an inappropriate exercise of judicial power. 75 In my opinion, to grant leave, on either of the two bases advanced, would subvert a valid exercise of legislative power. The Court should not exercise a discretion in such a way as to undermine the purpose and object of valid legislation with the effect, indeed for the purpose, that the intention of Parliament will be frustrated. 76 As the joint judgment accepted in Baker: "[43] … a legislature can select whatever factum it wishes as the 'trigger' of a particular legislative consequence." 77 The Parliament of New South Wales has enacted a "consequence" which, in the exercise of the tradition of mutual respect in our constitutional system, this Court should respect. 78 As Lord Simon of Glaisdale said in British Railways Board v Pickin [1974] AC 765 at 799: "It is well known that in the past there have been dangerous strains between the law courts and Parliament - dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other … ."
(See also at 788 per Lord Reid.) 79 Furthermore, as the High Court said in a joint judgment in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, at 473: "The question whether a particular legislative enactment is a necessary or even a desirable solution to a particular problem is in large measure a political question best left for resolution to the political process. The resolution of that problem by the Court would require it to sit in judgment on the legislative decision, without having access to all the political considerations that played a part in the making of that decision, thereby giving a new and unacceptable dimension to the relationship between the Court and the legislature of the State." 80 Finally, as Cooke P said in Prebble v Television New Zealand Ltd [1993] 3 NZLR 513 at 517: "The legislative, executive and judicial arms of the state do not intrude into the spheres of one another except when that is essential to the proper performance of a constitutional role. There is a principle of mutual restraint." 81 Each of the two bases upon which each Applicant seeks leave, invites this Court to remove the basis upon which the Parliament has enacted constitutionally valid legislation. The invitation to act in this way would, in my opinion, constitute a failure to respect the right and powers of the Parliament to legislate. This Court should be slow to exercise a judicial discretion which has such an effect and should refuse to exercise a judicial discretion, as it has in substance been invited to do, for that purpose. 82 There was no miscarriage of justice. Each application for leave should be refused.
Was the Recommendation an "Order"? 83 This Court's jurisdiction is found in s 5 of the Criminal Appeal Act 1912 which confers a right to appeal, by leave, "against the sentence passed on conviction". Section 6 confers powers on this Court with respect to such an appeal. By s 2, "sentence" is defined, relevantly, to extend to: "any order made by the court of trial on convicting a person of an offence". Furthermore, s 2(2) of that Act, added in 2000, provides: "For the purposes of this Act, a sentence is imposed or passed on a person on conviction or on a finding of guilt even if it is imposed or passed after the conviction or finding of guilt or as a result of re-sentencing." 84 Because of my conclusion that this Court should not exercise the discretions to grant leave, it is not necessary to deal with other submissions. Nevertheless, as the matter may go further, it is appropriate to consider the issue raised about the characterisation of the Non-Release Recommendation. 85 Each Recommendation did not have any legal affect upon the Applicant's punishment as at the time each was made. It could not then have been the subject of an appeal. Each Applicant submits that the subsequent effect given to his Recommendation by legislation is such as to constitute the Recommendation an "order", within the definition of "sentence" in the Criminal Appeal Act, as set out above. Each Applicant submits that this arose at the time that the first Act was enacted (1997) or, alternatively, at the time that s 2(2) was added to the Criminal Appeal Act in 2000. 86 It is convenient to deal firstly with the reliance on s 2(2). This subsection was added by way of abundance of caution. The explanatory memorandum that accompanied the 2000 amendment Act said: "The amendment qualifies the provisions relating to appeals to the Court of Criminal Appeal involving sentences imposed on persons convicted or found guilty of offences. The amendment ensures that the right of repeal is not affected because of any delay in the sentence brought by the need to obtain an assessment report or otherwise … or as a result of resentencing …" 87 No doubt this clarified the position. However, in my opinion, the reference to "passed on conviction" in s 2(1) would not have been construed as requiring an immediate sentence, thereby not permitting an appeal in the case of a sentence that was delayed or which occurred as a result of resentencing. 88 If the 1997 Act does not have the effect of transmogrifying a non-release Recommendation into an "order", within the meaning of the definition of "sentence", the addition of s 2(2) clarifying the position in a case of a delay between conviction and sentence, does not do so. 89 The issue is one of statutory construction of the word "order". Mr T Game SC, who appeared for the Applicant Elliot, but whose oral submissions in this respect were adopted by Mr B Walker SC, on behalf of the Applicant Blessington, submitted that any matter that enforceably affects the liability for punishment of a prisoner is a sentence or a part of the sentence. After the Act of 1997, the Recommendation of Newman J did enforceably affect the liability of each Applicant. 90 Mr Game SC submitted that if the 1997 Act, which first gave legal effect to a non-release recommendation, had been in force as at the date of Newman J's decision, or at the time of the First Appeal, then the Recommendation would have been an "order" and, accordingly, could have been the subject of an appeal. 91 I accept this submission. That does not, however, have the consequence that the subsequent legislation had the effect of transmogrifying the observation into an "order" as at, relevantly, 1997. 92 A significant factor in determining the meaning of the word "order" is that it must be an "order made by the court of trial". This formulation appears also in each of the subparagraphs of par (b) of the definition of sentence. 93 Section 2 also contains the following definition: "Court of trial means any court from whose finding, sentence, order, or other determination, a person is by this Act entitled to appeal or to apply for leave to appeal." 94 In my opinion, an observation like the Recommendation cannot be said to be an order made "by the court of trial" unless it was capable of being characterised as an "order", in the sense of having some legal effect, at the time it was made. 95 In Baker, as quoted above, the joint judgment characterised a non-release recommendation as a "trigger" at [43] and as a "legislative criterion" at [49]. Each characterisation is, in my opinion, inconsistent with the suggestion that the legal consequence of such a recommendation can be said to arise from anything done "by" the Court. At the time the Recommendation was made it had no legal effect. The subsequent legal effect was not something that was occasioned "by" the Court. 96 This interpretation of the words "order by the court of trial" is reinforced by other provisions of the Criminal Appeal Act. As at the time of the First Appeal the Act contained a provision, which continues to exist in substance albeit modified, that an appeal must be made "within 28 days of the date of … sentence" (s10). Section 10(3) (now s10(1)(b)) empowered the court to extend time. Nevertheless, the existence of the time limit supports the proposition that any aspect of the Remarks on Sentence must bear the character of an order at the time it was made. 97 This interpretation is also reinforced by the reasoning in Munday, to which I have referred above. 98 Accordingly, even if I had been of a different opinion with respect to the exercise of the discretion to grant leave, I would have rejected the appeal from each Non-Release Recommendation on the basis that it was not an "order by the court of trial". Accordingly, this Court does not have jurisdiction to hear an appeal from the Recommendation.
Conclusion 99 In the case of each Applicant, the orders I propose are:
The offences. 101 I need not restate the appalling circumstances which led to the murder of Ms Janine Balding. They are set out in the judgment of Spigelman CJ (supra para 4) where the Chief Justice provides an extract from the first appeal. Newman J, commenting upon these facts, said this: (ROS 7) "Accordingly, the jury found, in my view, that the culpability for the crimes in question reflected in the case of all three prisoners criminal responsibility of the highest degree. This surely must be one of the most barbaric murders ever committed in the sad criminal history of this State." 102 The offences were committed on 8 September 1988. The Government at that time was proposing a significant change to sentencing law. On 10 May 1989, the Minister for Corrective Services introduced the Sentencing Bill, promising what the long title suggested was "truth in sentencing". 103 The trial of Messrs Blessington and Elliott and the third accused, Stephen Wayne Jamieson, came before Wood J on 20 September 1989. The trial, however, aborted. Before the second trial, Parliament passed the Sentencing Act 1989. The Crimes (Life Sentences) Amendment Act 1989 amended the Crimes Act 1900 in respect of the punishment of murder, by introducing s19A, which was in these terms: " Punishment for murder 19A(1) A person who commits the crime of murder is liable to penal servitude for life. (2) A person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 442 (which authorises the passing of a lesser sentence than penal servitude for life). (4) This section applies to murder committed before or after the commencement of this section. (5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply. (6) Nothing in this section affects the prerogative of mercy." 104 On 24 May 1990, the trial of the applicants and Jamieson began before Newman J and a jury. On 22 June 1990, all three were convicted of a number of offences, including the murder of Ms Janine Balding. They were sentenced on 18 September 1990. By virtue of s19A(5) the punishment was to be determined by reference to s19 of the Crimes Act. Jamieson was an adult aged 22 years (born 29 December 1965) and was subject to a mandatory sentence of "penal servitude for life". The applicant Blessington was aged 14 years (born 21 October 1973) and the applicant Elliott was aged 16 years (born 16 April 1972). Being juveniles, they were liable to a maximum sentence of "penal servitude for life", at the discretion of the sentencing Judge (see amendment to s19 Crimes Act 1900 by Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987, Schedule 3). Section 19 of the Crimes Act was, at that time, in these terms: " Murder - punishment 19 Whosoever commits the crime of murder shall be liable to penal servitude for life. The provisions [Except in the case of murder committed by a person who is under the age of 18 years, the provisions] of section 442 shall not be in force with respect to the sentence to be passed under this section unless it appears to the Judge that the person's culpability for the crime is significantly diminished by mitigating circumstances, whether disclosed by the evidence in the trial or otherwise." 105 Section 442 was as follows: " Provision for passing sentences of less duration than those fixed 442(1) Where by any section of this Act an offender is made liable to penal servitude for life or to penal servitude or imprisonment for a fixed term, the judge may nevertheless pass a sentence of either penal servitude or imprisonment of less duration. Nothing in this subsection shall prevent the awarding of hard labour or solitary confinement, where at present authorised by law, or the directing of the offender to enter into recognizances to keep the peace and be of good behaviour. (2) Where by any section of this Act an offender is made liable to a fine of any fixed amount, the judge may nevertheless inflict a fine of less amount." 106 In respect of Matthew Elliott, his Honour said this: (ROS 9) "Next Matthew Elliott. He is now eighteen years, having been born on 16 April 1972. He was but sixteen at the date of these offences. While he has a criminal record, it, as his counsel correctly stresses, does not include any crimes of violence [before a serious assault shortly before the murder of Janine Balding]." (parenthesis added) 107 A psychologist examined Mr Elliott after his arrest. His opinion was as follows: (ROS 10) "Diagnostically, Matthew presents as a Conduct Disordered Youth. There was no evidence of severe mental disorder such as psychosis or neurosis, nor indications of organic disorder." 108 So far as Bronson Blessington was concerned, his Honour said this: (ROS 10) "Bronson Blessington is also very young. He is sixteen years, having been born on 21 October 1973, making him only fourteen at the time of the commission of these offences. Not only that, but psychiatric evidence indicates that his mental age at that time was even lower. Again, like Elliott, his age is a matter which causes me grave concern in considering sentence. Unlike Elliott, he comes from a broken home." 109 Mr Blessington had a minor criminal record. He was illiterate. Dr Clark, a psychiatrist, offered the following opinion: (ROS 11) "From a medico-legal point of view he does not suffer so severe a disorder that action would be appropriate under the Mental Health Act. There is no reason to think that he was psychotic at the time of the offence. That is to say he does not fulfil the criteria for a McNaughton defence if it were to be raised. He has a defined psychiatric disorder as noted above. This is a severe conduct disorder and necessarily means he has an abnormality of mind. He has an abnormality of mind from an inherent cause and which was present at the time of the offence. This fits the criteria for a defence of diminished responsibility." 110 His Honour noted that diminished responsibility had not been raised during the trial, adding this: (ROS 11) "He then went on to say in evidence that the condition which he had diagnosed was transient and he expected it to be resolved in time and he gave an example of a survey he had carried out in Victoria relating to seven young people who had been convicted of serious offences and had been incarcerated for some time. On the basis of this Dr Clark held out the strong hope that the boy Blessington is capable of being rehabilitated. Reports from the Department of Youth and Community Services indicate that Blessington has made excellent progress during his period of detention whilst awaiting trial." 111 In sentencing Messrs Blessington and Elliott for murder, his Honour made the following remarks: (ROS 15/16) "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 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 that 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 this matter should ever be released." 112 His Honour ordered that the applicants serve their sentences in a juvenile institution until the age of 18 in the case of Mr Blessington and 19 in the case of Mr Elliott.
The appeal. 113 Notices of Appeal were lodged on behalf of the applicants. Each notice included a complaint that the sentence was excessive. Both attacked the recommendation by the sentencing Judge that they should never be released. In written submissions provided on behalf of Mr Elliott to the Court of Criminal Appeal, the following was said: "The Trial Judge imposed the mandatory life sentence which in the circumstances was appropriate. By making the further recommendation that the Appellant 'never be released' His Honour imposed a sentence which was manifestly excessive and crushing for the Appellant who at the time of the offences was still a juvenile." 114 As mentioned, the life sentence for a person under the age of 18 years was discretionary, not mandatory. The Crown's submission in response included the following: "It is submitted that the sentence his Honour imposed and recommendation made, were not manifestly excessive, nor crushing, but was a sentence and recommendation available to his Honour, in the proper exercise of his discretion." 115 However, when the matter was argued, the then Chief Justice (Gleeson CJ) raised the issue of the Court's jurisdiction to deal with the recommendation (T51). The debate included the following exchange with counsel then appearing for Mr Blessington: (T70/71) "COOREY: I was hoping to say that if the recommendation is left there then wherever it goes to he will be affected. GLEESON CJ: We do not have to speculate about wherever it goes to. Correct me if I am wrong and I am only talking from memory and might well be wrong, but it was my understanding that if a person had been given an indeterminate life sentence, then under the existing statutory procedure that person had a right, after eight years, to apply to a Judge of this Court to change the indeterminate sentence to a determinate sentence. Now the question is, what, if any, effect upon the right to make that application does the marking of the papers have and the second question is what, if any, effect upon the prospects of success of the application would that marking have? I suspect the answer to both of them might be 'None'. COOREY: I suspect the answer to both might be 'We don't know'. HOPE AJA: The answer to the first question is a matter of law: the answer is 'None'. COOREY: One comes forward under s13 where one makes the application to your Honour, realistically coming forward, the right is there but what will happen when one sees that a Supreme Court Judge has recommended 'Never to be Released'? GLEESON CJ: Coming before another Supreme Court Judge, he is not going to be overborne by Newman J's expression of opinion. COOREY: Except that if this Court says that it offends principle that a 14 year old receives this type of sentence, then it gives the appellant greater confidence when he comes forward, whether he makes the application under s13 or whether he lets things ride later. GLEESON CJ: I am surprised you want to attack the life sentence at all. I am surprised it is thought to be in the interests of your client to do so because if we re-sentenced your client we would re-sentence him under the provisions of the existing legislation. If we were to give him a life sentence, that would have far more severe consequences for him than the sentence he is presently serving. It might also be the case, if we were to give him a determinate sentence, he might find himself worse off than he would be if he exercised his right to apply after eight years. I have been sitting in a number of criminal appeals where people have withdrawn appeals against indeterminate life sentences because they would rather stay with that." (emphasis added)
Subsequent legislative changes. 116 The Chief Justice has described the changes to sentencing legislation introduced in 1997, 2001 and 2005. The amending Acts successively eroded, and ultimately removed, the right of each applicant to seek a date for release. The Legislation made the "non release recommendation" the trigger for the consequences which each Act introduced. It is useful to describe the steps by which the position of those serving an existing life sentence, which was subject to a non release recommendation, was altered. The 1997 amendment to s13A of the Sentencing Act 1989 introduced the following changes: · First, persons serving an existing life sentence, who were subject to a non release recommendation, were not eligible to apply for a redetermination of their sentence for 20 years, whereas those who were not subject to such a recommendation could apply after eight years (s13A(3)). · Secondly, the Supreme Court, in deciding whether to make a redetermination, was obliged to give consideration "to adopting or giving effect to" the substance of the intention of the original sentencing Court (s13A(10A)). · Thirdly, the Supreme Court also had to be satisfied that, "special reasons existed that justified the making of the determination" (s13A(3A)). 117 In 1999, the Sentencing Act 1989 was replaced by the Crimes (Sentencing Procedure) Act 1999. Schedule 1 to that Act substantially re-enacted s13A of the previous Act. 118 In 2001, Schedule 1 was amended. The Crimes Legislation Amendment (Existing Life Sentences) Act 2001, introduced the following changes: · First, the period of ineligibility for the making of an application for redetermination (for those subject to a non release recommendation) was extended from 20 years to 30 years (Schedule 1, para 2(2)(b)). · Secondly, the Court could set a non parole period. It had no jurisdiction however to specify the term of the sentence. The prisoner would remain on parole for life (Schedule 1, para 4(3)). 119 The Crimes (Administration of Sentences) Act 1999 was amended at the same time to deal with the way in which the Parole Board should determine an application for parole by a person who was the subject of a non release recommendation. The amendment, relevantly, was in these terms: "s154A Serious offenders the subject of non-release recommendations ... (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." 120 On 15 April 2005, Dunford J delivered judgment on the Notice of Motion by Mr Blessington (R v Blessington (supra)). His Honour determined that the application by Mr Blessington for a redetermination of his life sentence was, by reason of the date that it had been lodged, to be determined in accordance with the provisions of s13A(4) of the Sentencing Act 1989 and not Schedule 1 of the 1999 Act. He could, therefore, ask the Court to fix both a minimum term and an additional term. Whilst s154A of the Crimes (Administration of Sentences) Act 1999 may make parole unlikely during the currency of the sentence (unless the applicant were dying), he would have to be released upon the expiration of his sentence. 121 Within that context, the Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 was passed. Relevantly, the Act provided two changes: · First, it provided that the provisions of the 2001 Act would apply, no matter when the application for redetermination had been made. · Secondly, the Act amended the definition of "non release recommendation". The amended definition was as follows: "non-release recommendation , in relation to an offender serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the sentencing court that (or to the effect that) the offender should never be released from imprisonment, and includes any such recommendation, observation or expression of opinion that (before, on or after the date of assent to the Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 ) has been quashed, set aside or called into question. " 122 The applicants seek to challenge the constitutional validity of the underlined portion of that definition. The Second Reading Speech made it clear that the purpose of the amendment was to overcome the decision of Dunford J (Hansard 4.5.05). It was said that Mr Blessington was the only person affected by the first of these changes. 123 In Baker v The Queen (supra), the High Court considered a challenge in the context of the amending Act 1997. The appellant was the subject of an existing life sentence and a non release recommendation. McHugh, Gummow, Hayne and Heydon JJ, who formed part of the majority, made the following statement concerning the nature of a life sentence, and a prisoner's claim to parole. The comments were made concerning a life sentence and the ticket of leave provisions under the Crimes Act before the 1989 Act: "[29] Whilst s463 remained in force, the judicial power to impose sentence upon a person convicted of murder was confined: the only sentence that could be passed was that the offender suffer penal servitude for life. Upon passing that sentence the judicial power was exhausted. Whether the offender served the sentence in prison or at large was a matter which then was to be decided by the Executive, not a court. If the Executive exercised the power given by s463, the offender obtained a mercy. But in no sense (whether as a matter of substance or as a matter of form) can later legislation, altering the circumstances in which such mercy could or would be extended to a prisoner sentenced to life imprisonment, make that sentence of life imprisonment more punitive or burdensome to liberty. Whether the power to reduce the effect of a life sentence is given to a court (as the legislation now in question did) or is retained by the Executive, the original sentence passed on the offender could not be and was not extended or made heavier." 124 Messrs Blessington and Elliott were sentenced to life imprisonment under s19 and s19A(5) of the Crimes Act. They were not sentenced to life imprisonment under s19A(2), that is, for the term of their natural lives. At the time they were sentenced, they each had the prospect of a redetermination. A redetermination would provide the possibility of release on parole as well as a finite term, as the debate before the Court of Criminal Appeal, on the first appeal, made plain (supra para [115]). 125 However, successive amendments, first to the Sentencing Act 1989, and then to the Crimes (Sentencing Procedure) Act 1999 (and the companion Act in respect of the administration of parole), have removed the possibility of a finite term. The legislation has also removed the possibility of parole, except in circumstances which are little different from the prerogative of mercy (which applies, in any event, whether the person is sentenced under s19A(2) or s19A(5), by virtue of s19A(6)). In substance, both will be required to serve an indefinite term, indistinguishable from a sentence of life under s19A(2) where the sentence is for the prisoner's natural life.
The relevance of the offenders' youth. 126 A sentencing Judge, in determining sentence, is concerned with the criminality of the offender. In determining criminality, a distinction is made between adults and children. A child, for these purposes, is "a person under the age of 18 years". The distinction reflects common sense, but also has an ancient lineage. It can be traced back to the Hammurabi Code four thousand years ago (M C Kurlychek and B D Johnson, "The Juvenile Penalty: A Comparison of Juvenile and Young Adult Sentencing Outcomes in Criminal Courts" (2004) 42(2) Criminology 485 at 488). Under the common law there were presumptions by which the responsibility of a child was determined. One of these presumptions is now embodied in statute. There is an irrebuttable presumption in New South Wales that a child under the age of 10 years is incapable of committing a criminal offence (Children (Criminal Proceedings) Act 1987, s5). A child between the ages of 10 and 14 years is doli incapax, that is, presumed to be "incapable of wrong". The presumption is made that he or she is incapable of forming the relevant criminal intent. The presumption is rebuttable. There are degrees of responsibility as a child approaches adulthood, depending upon the relevance of the child's immaturity to the particular crime, and upon intellectual capacity. 127 A jurisprudence has developed in the context of sentencing young offenders, which recognises the important differences, in terms of responsibility, between adults and children. The reasons for the distinction were well explained in a report by a psychologist which the New Zealand Court of Appeal reproduced and appeared to accept in Slade v The Queen [2005] NZCA 19: "[43] It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents' decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents' desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent." 128 Gleeson CJ, in the context of the first appeal ((1992) 60 A Crim R 68), when commenting upon the non release recommendation, specifically referred to the youth of Messrs Blessington and Elliott. He said this: (at 80) "With respect to the learned sentencing judge, however, I have a problem concerning his recommendation that the appellants should never be released. Counsel were 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 not support the recommendation made by Newman J. This is not intended to be a recommendation by me that either appellant should be released at some time in the future. It is simply intended as an expression of my view that the making of any recommendation on that subject in these circumstances is not appropriate." (emphasis added) 129 At about the same time as the "truth in sentencing" changes were being introduced by the Sentencing Act 1989, the United Nations published the Convention on the Rights of the Child 1989. The Convention included the following provision: (Article 37) "States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; ..." (emphasis added) 130 The Australian Government ratified that Convention in December 1990. Indeed, only two member states have not ratified the convention: the United States and Somalia. In the United States, nonetheless, the distinction between an adult and child is important and has constitutional implications. In Roper v Simmons (2005) 125 S Ct 1183, the issue was whether the death penalty in the case of a juvenile was in breach of the Eighth Amendment, that is in breach of the prohibition against cruel and unusual punishments. The Court divided 5:4. The majority decision included these words: (at 1195/96) "The susceptibility of juveniles to immature and irresponsible behaviour means 'their irresponsible conduct is not as morally reprehensible as that of an adult'. Their own vulnerability and comparative lack of control over their surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, '[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside'." 131 In 1993, s13A of the Sentencing Act 1989 (dealing with the redetermination of existing life sentences) was amended to include the following provision: "(9) The Supreme Court, in exercising its functions under this section, is to have regard to: ... (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." 132 More importantly, in the context of these appeals, the Crimes Act was amended by the Crimes Amendment (Mandatory Life Sentences) Act 1996 (with effect from 30 June 1996) by inserting s431B. That section was in these terms: " Mandatory life sentences for certain offences s431B(1) A court is to impose a sentence of penal servitude for life on a person who is convicted of murder, if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. (2) A court is to impose a sentence of imprisonment for life on a person who is convicted of an offence under section 25(2) or (2A) of the Drug Misuse and Trafficking Act 1985 to which section 33 (subsection (2) excepted) of that Act applies involving heroin or cocaine if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence and the court is also satisfied that: (a) the offence involved: (i) a high degree of planning and organisation, and (ii) the use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and (b) the person was solely or principally responsible for planning, organising and financing the offence, and (c) the heroin or cocaine was of a high degree of purity, and (d) the person committed the offence solely for financial reward. (3) Nothing in subsection (1) affects section 442. (4) Section 442 of this Act and section 33A(2) of the Drug Misuse and Trafficking Act 1985 do not apply if the court is satisfied that the circumstances referred to in subsection (2) exist. (5) Nothing in subsection (2) limits or derogates from the discretion of a court to impose a sentence of imprisonment for life on a person who is convicted of an offence under section 25(2) or (2A) of the Drug Misuse and Trafficking Act 1985 to which section 33 (subsection (2) excepted) of that Act applies involving heroin or cocaine. (6) This section does not apply to a person who was less than 18 years of age at the date of commission of the offence. (7) This section does not apply to offences committed before the commencement of this section. (8) In this section 'heroin' has the same meaning as in the Drug Misuse and Trafficking Act 1985." 133 The section defined the circumstances in which it was appropriate, in the context of murder, to impose a sentence under s19A(2), that is, a sentence of life imprisonment meaning for the person's natural life. Although the United Nations Convention on the Rights of the Child was not mentioned when the provision was introduced to Parliament, s431B(6) was consistent with that Convention. The implication was that persons less than 18 years of age at the date of the offence should not be characterised as being in the worst category (s431B(1)) and therefore should not be given a sentence without the possibility of release, that is, for the duration of that person's natural life. 134 Section 431B predated the 1997 amendments to the Sentencing Act. When the Sentencing Act 1989 was repealed and replaced by the Crimes (Sentencing Procedure) Act 1999, s431B was also repealed. However, it was replaced by s61 of the Crimes (Sentencing Procedure) Act which was in identical terms, including the following: " Mandatory life sentences for certain offences s61(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. ... (6) This section does not apply to a person who was less than 18 years of age at the date of commission of the offence." 135 There were other provisions in the Crimes (Sentencing Procedure) Act 1999 which reflected the importance which the criminal law placed upon the age of the person when the crime was committed. Schedule 1, dealing with existing life sentences (replacing s13A of the previous Act), included a requirement that the Supreme Court, when considering an application, have regard to: (Clause 7(1)). "(c) the age of the offender (at the time the offender committed the offence and also at the time the Supreme Court deals with the application), and ..." 136 In 2002, s21A was inserted in the Act, identifying aggravating, mitigating and other factors relevant to sentencing. Section 21A(3) identified the following as a mitigating factor: "(j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, ..." 137 In form, the sentences were, and remain, sentences of penal servitude for life. However, in truth (to adopt the catchphrase of the 1989 Sentencing Act), a life sentence with a non release recommendation was, after 2001, indistinguishable from a sentence under s19A(2), that is, a sentence of life imprisonment, meaning for the term of the prisoner's natural life. The prisoner in both cases could only be released if dying or significantly disabled (s19A(6) and s154A Crimes (Administration of Sentences) Act 1999). By the use of a trigger (the non release recommendation), a sentence under the old regime (s19A(5) Crimes Act) had been made the equivalent of a sentence for the worst class of case under the new s19A(2), for which life imprisonment (meaning natural life) was appropriate. Yet after 1996, when s431B was inserted in the Crimes Act, were a child to commit a crime as grave as that committed by these applicants, the implication was that he or she should not be sentenced to life under s19A(2), that is, natural life. 138 In these circumstances, a question of construction arises. The amending Act of 1997, and those which followed, included a definition of "non release recommendation". The definition simply referred to "persons who were serving an existing life sentence and were subject to a non release recommendation". It did not differentiate between adults and children. Should the general word "persons" be construed as extending to both adults and children, in the light of s431B of the Crimes Act and s61(6) of the Crimes (Sentencing Procedure ) Act 1999? 139 In resolving that issue, two concepts are important. First, there is the general rule that courts will construe a statute in conformity with the common law and will not attribute to Parliament an intention to alter common law principles unless such an intention is manifested, according to the true construction of the statute (American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, per Mason J at 683-4). Dawson J in Baker v Campbell (1983) 153 CLR 52, expressed the rule in this way: (at 123) "In the interpretation of statutes there is a presumption that there is no intention to interfere with basic common law doctrines unless the words of the statute expressly or necessarily require that result." 140 The second concept, is the concept of legality (see J J Spigelman, "Principle of Legality and the Clear Statement of Principle" (2005) 79 ALJ 769; Lodhi v Regina [2006] NSWCCA 121, per Spigelman CJ at [32]ff). R v Secretary of State for the Home Department Ex parte Simms [2000] 2 AC 115, established the "Principle of Legality" as a unifying principle in English law, where Lord Hoffman said this: (at 131) "[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document." (emphasis added) 141 Gleeson CJ in Al-Kateb v Goodwin (2004) 219 CLR 562, made the following comments in the context of the Migration Act 1958 in a case concerned with the lawfulness of the detention of an unlawful non-citizen, pending deportation: "[19] Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases ( Coco v The Queen (1994) 179 CLR 427; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492 [30]). It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that '[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness' ( Potter v Minahan (1908) 7 CLR 277 at 304. See also R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 at 587-589 per Lord Steyn; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131 per Lord Hoffmann). [20] A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament." 142 Is the distinction made by the criminal law between adults and children a "basic common law doctrine" (cf Baker v Campbell (supra)) or a fundamental legal principle, or part of the general system of law, such that you would have expected Parliament, had they intended to include persons who were children at the time the offence was committed, to have said so expressly? 143 The issue was not argued on this appeal. I will assume that the amending legislation of 1997, 2001 and 2005 does apply to the applicants even though both were children at the time they committed the offence of murder.
The appeal to this Court. 144 The context has been identified, but is worth repeating. The applicants were sentenced by Newman J to penal servitude for life. They appealed to the Court of Criminal Appeal (Gleeson CJ, Hope AJA and Lee AJ). On 17 February 1992, the Court granted each appellant leave to appeal, but dismissed the appeal against sentence. 145 Each applicant has asserted that this Court has jurisdiction to reconsider the sentences imposed upon three different bases. · First, taking up the tentative suggestion by Dunford J in R v Blessington (supra) that, upon the coming into effect of the 1997 legislation, or alternatively once s2(2) was added to the Criminal Appeal Act in 2000, there was for the first time an "order" which may be the subject of an appeal to this Court. The appeal is out of time and the applicants must therefore ask this Court to extend time to permit such an appeal to be made. · Secondly, the Court may reopen the appeal determined by this Court in February 1992, because the order was never perfected. If, in fact, the order was not perfected, the applicants would nonetheless require leave to reopen the appeal. · Thirdly, it was argued that this Court may, in any event, reopen the appeal because each applicant was (inadvertently) denied natural justice before Newman J and before the Court of Criminal Appeal. There was simply not the opportunity on either occasion to make submissions with respect to the non release recommendation. It therefore remained an aspect of the sentencing remarks. It has since been adopted by the legislature as the trigger for certain consequences in respect of the sentences being served by the applicants. Leave to reopen the appeal is also required upon this basis. 146 The first ground involves a question of construction. The question has been addressed by the Chief Justice in his judgment (para [83]ff). I respectfully agree with his conclusion and with the order he proposes that, in relation to that issue, leave to appeal out of time be refused. 147 Let me, then, turn to the second and third bases, which involved reopening the appeal. In respect of the second basis, the Chief Justice has concluded, and I respectfully agree, that the order of this Court has not been perfected. There is therefore jurisdiction to reopen the appeal. The Chief Justice found it unnecessary to deal with the third basis, the suggested denial of procedural fairness, although he noted that there were authorities that suggested that a Court can reopen an appeal upon that basis (para [46]). In view of the conclusion that I have formed, I also believe that it is unnecessary to deal with that issue. However, the absence of opportunity to deal with the non release recommendation (whether or not it amounted to a denial of natural justice) is, in my view, relevant to the question of leave to reopen the appeal upon the second basis. 148 Leave to reopen the appeal should be given in order to avert a miscarriage of justice (supra para [48]). Has there been such a miscarriage? In resolving that issue, can this Court have regard to the amending legislation since the applicants were sentenced, and especially their changed position after 1997? 149 The Chief Justice refused leave to reopen because, in his view, the circumstances in which this Court is entitled to review a sentence by reference to subsequent events is severely circumscribed by authority. Where Parliament has acted by passing valid legislation it would, in the Chief Justice's view, be to subvert a valid exercise of legislative power to grant leave. He concluded that this Court should not exercise its discretion in such a way as to undermine the legislation, or frustrate the intention of Parliament (para [75]).
The relevance of subsequent legislation. 150 The Court of Criminal Appeal is a court of error. On a sentence appeal, it examines the material before the sentencing Judge to determine whether there were errors of law or findings of fact which were clearly wrong (cf Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 107; Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281, per Glass JA at 297/298). An appeal by way of rehearing, in contrast, may be determined taking account of changes in the law (Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192, per Windeyer J at 208-9). 151 Accordingly, the rule in this Court is that evidence concerning events which occur after sentencing is ordinarily not relevant or admissible, except upon the limited basis that it may be used if the Court finds error and needs to resentence. In R v Munday (supra), Street CJ stated the rule in these terms, referring to the Court of Criminal Appeal: (at 178) "It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time it was passed . The review of a sentence in the light of subsequent evens is the proper province of the executive Government and not of an appeal court." 152 One can well understand the reasons for the rule. There must be finality. Real inconvenience and uncertainty may attend the creation of a broad right to re-litigate, where some unfairness is said to arise from events which occur after the sentence is imposed. 153 There are, however, exceptions to the rule. R v Ehrenburg (supra) illustrates the exception. The offender was pregnant at the time the sentence was imposed. Evidence concerning early complications in her pregnancy was placed before the sentencing Judge. After sentence had been passed, and whilst in the precincts of the Court, she began to haemorrhage. Significant complications developed. The baby, when born, was found to be suffering from a deformity of both hands and feet requiring partial amputation. Application was made to place before the Court fresh evidence in respect of these events and the hardship they occasioned to the appellant. Loveday J (with whom Gleeson CJ and Samuels JA agreed), stated the principle in these terms: (at 5) "One circumstance that can make them relevant is if the subsequent events make known or explain something that was either unknown or not fully appreciated at the time of sentencing. An example of this is where a prisoner is sentenced not knowing that he is suffering from AIDS. The subsequent diagnosis means that his period in custody will cause him additional hardship. In such cases this court has reduced the sentence imposed: See eg Reg v Cooper (CCA, unreported, 9 November 1988). In the present case, I believe that the subsequent events can be seen as a manifestation of something that was present but not fully appreciated at the date of sentence." (emphasis added) 154 His Honour emphasised (as did Samuels JA) that the power should be exercised sparingly. He said this: (at 7) "It must be stressed, however, this is a most unusual case. It will be unfortunate if the special facts and circumstances of this case, which I regard as borderline, were to be regarded as a general precedent for the review of a sentence by this court in the light of subsequent events. Such a course is, as it has always been, a matter for the executive government (see R v Munday (1981) 2 NSWLR 177)." 155 R v Sommerville (1995) 36 NSWLR 184, involved facts which were unusual and complicated. In December 1993, Sommerville was sentenced by O'Reilly DCJ to imprisonment for two years to be served by way of periodic detention. His Honour did not fix a minimum term and an additional term. Sommerville attended for periodic detention as required. 156 However, in April 1994, he came before a magistrate upon a charge of driving whilst disqualified. He was sentenced to a term of imprisonment of four months. The magistrate did not, however, comply with s24(1) of the Periodic Detention of Prisoners Act 1981 by making an order cancelling the periodic detention. Nor did he advert to the discretion he had to divide the unexpired portion of the sentence (deemed to be a separate term of imprisonment) into a minimum and additional term, with a parole order. 157 Sommerville lodged an appeal to the District Court against the magistrate's decision. However, in May 1994 the appeal was withdrawn. McGuire DCJ confirmed the magistrate's order "in all respects". Sommerville was, at that time, in custody. 158 Later the same day, the Crown drew the Judge's attention to the terms of the Periodic Detention of Prisoners Act 1981. A judge on appeal had a discretion to divide the unexpired portion of the sentence and make a parole order. However, McGuire DCJ did not intervene. The prisoner was left in a position where he was obliged to serve in full time custody the remainder of the sentence which O'Reilly DCJ had imposed. 159 An application for leave to appeal was made, in these circumstances, to the Court of Criminal Appeal. Simpson J (Gleeson CJ and Barr J agreeing) said this: (198/9) "A fair reading of [O'Reilly DCJ's] remarks on sentence suggests that he did in fact take that course and increased the sentence by reason of the periodic detention order. His Honour did not envisage a full time sentence of two years. There was no error in what his Honour did at the time he sentenced the applicant.
But subsequent events have wrought a change in the sentence then imposed such, in my opinion, as to make it manifestly excessive in the circumstances. It is only in exceptional cases that events subsequent to sentence can be taken into account in determining an appeal against sentence. One such example occurs where a co-offender is sentenced at a later date than the applicant, and given a more lenient penalty. The explanation for the appellate court having regard to this later event lies not in its direct relevance to the sentencing process (because it is not directly relevant) or in the disclosure of any error in the sentencing process (because that, too, may not exist) but in the legitimate sense of grievance which is perceived to arise by reason of the disparity itself; or put another way, the appearance that justice has not been done: Lowe v R (1984) 154 CLR 606 at 610, 612, 623. The present circumstances too, are exceptional. The applicant has been deprived of the benefit a proper exercise of discretion on two occasions. His present position has come about as the result of the intermingling of different legislative provisions, leaving something of a tangle. Since I have concluded that all of this has resulted in a sentence that is manifestly excessive, I would propose that the sentence imposed by O'Reilly DCJ (in its reconstituted form, after the interposition of the deeming provisions of s27(1)), be quashed, and this Court proceed to re-sentence. During the course of argument we were told that, had the magistrate or McGuire DCJ adopted the course of cancelling the periodic detention order and imposing minimum and additional terms according to the conventional ratio to the unexpired portion of the sentence, the applicant could have expected to have been released on parole at approximately the time that this judgment will be delivered. I think that this is an appropriate result, and the sentence I propose is specifically designed to achieve it ..." (emphasis added) 160 Gleeson CJ, in a separate judgement, said this: (at 189) "For the reasons given by Simpson J, I agree that this is one of those exceptional cases in which, by reason of a combination of circumstances following the original sentencing, there can be seen to have been a miscarriage of justice. Those circumstances include the special statutory scheme which connects the original sentence and the subsequent proceedings in relation to cancellation of the periodic detention order, the fact that O'Reilly DCJ expressly said that he was imposing a longer sentence by reason of the periodic detention order, and the failure of the courts which dealt with the second offence to advert, or advert fully, to the relevant provisions of the Periodic Detention of Prisoners Act. ... " 161 In R v Vasich (1998) 99 A Crim R 262, the Court of Criminal Appeal in Western Australia (Kennedy, Pidgeon and Heenan JJ agreeing) said this: (at 270/71) "In Smith (1987) 44 SASR 587, 27 A Crim R 315; Bailey (1988) 35 A Crim R 458 and Eliasen (1991) 53 A Crim R 391 the Courts of Criminal Appeal of South Australia, New South Wales and Victoria respectively, emphasised that generally an appellate court should not intervene upon the basis of events which have occurred since the imposition of sentence and that further evidence, therefore, is not receivable to establish the occurrence of such events. In Eliasen (at 394) Crockett J said: 'This Court accedes very sparingly to applications of this kind. Applications for leave to appeal are dealt with on the basis that, unless the sentencing judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by the reference to the matters available to be considered by the judge at the time that he determines upon the sentence.' However, the appellate court may receive evidence as to events occurring after sentence if that further evidence tends to show the true significance of facts which were in existence at the time of sentence. Then the court will reconsider the matter in the light of that further evidence and, even where the discretion of the sentencing judge has not miscarried, it will intervene if it thinks that the further evidence should lead to a different sentence (see Smith per King J at 588; 316, Bailey per Lee J at 462 and Eliasen per Crockett J at 394)." (emphasis added) 162 In a later case, McMaster v R [2004] WASCA 52, McKechnie J set out a series of propositions in respect of the admission of evidence relating to events subsequent to sentence: (at para [43]) "(a) If the fresh evidence relates entirely to events which have occurred since sentence, it may only be receivable if there has been an error in sentencing discretion by the Judge. (b) If there is no error, the evidence is inadmissible, and under Criminal Code s689(3) the Court 'shall dismiss the appeal'. (c) In consequence, if subsequent events have made a sentence, appropriate when passed, manifestly excessive, that is a matter for the Executive and the prerogative of mercy, not the Court of Criminal Appeal. (d) Fresh evidence may be admitted in discretion to bring before the Court facts which were in existence at the time of the imposition of the sentence but were not known to the sentencing Judge. (e) Fresh evidence may be admitted in discretion to explain facts which were before the sentencing Judge so as to put them in a new light. (f) Even when the discretion to admit fresh evidence is enlivened, the discretion will only be exercised in exceptional or unusual cases." 163 The issue concerning the admissibility of evidence of events subsequent to sentence arose in R v Keir [2004] NSWCCA 106. The appellant was 79 years old when sentenced. He was in poor health. The sentencing judge imposed a custodial sentence, but specified terms as to his placement and treatment in gaol. On appeal, evidence was admitted as to the actual conditions of incarceration. The Court (Dunford, Greg James and Buddin JJ) said this: "[67] It was submitted that the sentencing judge had accepted the evidence of Dr Roberts that the Corrections Health Service would be able to meet its responsibility for the applicant's required treatment and that it was not this Court's role to concern itself with the condition of the applicant whilst he was in custody. [68] In our view these submissions should be rejected. We are satisfied that the evidence as to the circumstances, and the conditions in which the applicant was detained, was capable of having had a real bearing upon the exercise of the sentencing discretion. Exceptionally, the evidence is admissible: Regina v Goodwin (1990) 51 A Crim R 328; Regina v Bradley [2004] NSWCCA 88; Wilson v Department of Corrective Services (1997) 93 A Crim R 301. It is admissible because it shows that the applicant's treatment in custody has been quite different to that which was suggested in the evidence that was led before the sentencing judge and upon which her Honour acted in imposing the sentences which she did. [69] We accept that normally evidence of matters occurring after the passing of sentence is not admissible on a sentence appeal unless the court, on other grounds, upholds the appeal. In such a case that evidence may well be admissible at the point at which the court proceeds to consider for itself matters relevant to the fresh sentence to be imposed. But there has long been an exception, of which Regina v Jenkins (CCA, unreported, 14 July 1993) is but one example, that evidence will be received of the circumstances under which an offender is required to serve his or her sentence, if those circumstances demonstrate that the sentence was to be served in conditions which were much more onerous than, or were sufficiently different in nature from, those which were expected to flow from the sentencing order made by the sentencing judge. " (emphasis added) 164 The Court added: "[71] Those remarks illustrate the limited extent of the exception to the general rule that evidence of events occurring post-sentence is not admissible. Evidence of matters occurring subsequent to sentence is admissible however if it is capable of demonstrating that the very basis upon which the sentencing discretion was exercised has been undermined or thwarted. The exception is however strictly circumscribed and should generally be limited to cases of the kind to which we have referred. [72] A number of cases have come before the courts in which at the time of sentence, the offender was suffering from a mental condition or an illness although that fact was not known at the time. Where that condition was of significant materiality to the sentence imposed, as distinct from being merely a matter to which particular regard needed to be paid administratively by the Corrective Services authorities, courts have allowed an applicant to successfully challenge the sentence on appeal. Those cases are, like the present one, however, wholly exceptional." (emphasis added) 165 What, then, emerges from these authorities? The exception has been formulated in various ways, some broader than others. All emphasise that the jurisdiction to admit evidence of events subsequent to sentence is exceptional, and to be used sparingly. Ehrenburg (supra para [153]) suggested that evidence concerning subsequent events was admissible where it made known, or explained something, which was unknown or not fully appreciated at the date of sentence. Vasisich (supra para [161]) speaks of receiving evidence (as to events occurring after sentence) "if that further evidence tends to show the true significance of facts which were in existence at the time of sentence". Keir (supra para [163]) declared that evidence of subsequent events was admissible if it demonstrated "that the sentence was to be served in conditions which were much more onerous than, or were sufficiently different in nature from, those which were expected to flow from the sentencing order made by the sentencing Judge". Sommerville (supra para [155]) is perhaps the widest formulation where Simpson J speaks in terms of subsequent events having "wrought a change in the sentence then imposed such as to make it manifestly excessive in the circumstances". 166 So the subsequent event must relate back to some fact or assumption made by the sentencing Judge which has changed, such that there is the danger of miscarriage if it were ignored. Most of the authorities state the rule, and the exception, in terms of "fresh evidence". R v Munday (supra para [150]) defines the rule somewhat more broadly referring to "subsequent events", a phrase wide enough to include changes in legislation (cf parity supra para [159]). In respect of a change in legislation no evidence would be required and no finding of fact. The issue is simply whether the appeal court may have regard to the changed position. 167 Here, as mentioned, Messrs Blessington and Elliott were sentenced at a time when sentencing laws were undergoing change. Whilst they were sentenced under the old regime, the legislative context contemplated the possibility of a determinate sentence and a non parole period under s13A. When the sentence of life imprisonment was imposed, and the appeal against manifest excess considered, the assumptions underpinning the sentence included: · First, that being a sentence under s19 and s19A(5) of the Crimes Act 1900, there was no power to impose a sentence of life (meaning natural life). · Secondly, that the non release recommendation had no legal effect. · Thirdly, that Messrs Blessington and Elliott had the right at that point to seek a redetermination, which may or may not be granted, or may not be immediately granted. 168 The non release recommendation was, or course, an aspect of the sentence of Newman J. The legislation introduced in 1997, 2001 (and 2005) related back to that aspect. It changed the assumptions made at the time of sentence (and the appeal). Had the sentencing Judge known what was to occur, he may well have hesitated before making the recommendation he did against offenders so young. His words, after 1997, ceased to be simply a potential spanner in their works, which may slow but not prevent their release, and became the trigger for their indefinite detention, unless each was at the point of death or was significantly disabled. 169 If, for the purposes of argument, the appeal in 1992 had been delayed and the legislative changes that in fact occurred between 1997 and 2001 had occurred much earlier, and before the appeal was heard, could the Court have had regard to such changes? The changes would obviously be relevant to the question of whether the sentence was manifestly excessive. Now, it will be remembered that during the appeal Gleeson CJ posed two questions, referring to the non release recommendation (supra para [115]): " ... what, if any, effect upon the right to make that application does the marking of the papers have and the second question is what, if any, effect upon the prospects of success of the application would that marking have? I suspect the answer to both of them might be 'None'."
Whilst the answer may have been "none" at the time Newman J passed sentence, by the time of the appeal, in this example, the amending legislation would require a different answer. The answer to the first question would be that a prisoner could still make an application to fix a non parole period, but not a release date, but could only make that application after serving 30 years. The answer to the second would be that, even were the application successful and a non parole period fixed, the prisoner could not be given parole unless he was about to die, or was profoundly disabled. 170 It would, I believe, be unjust and unreasonable if the Court of Criminal Appeal did not have regard to the changed position of the applicants, in the example I have given. When the appeal was heard (in 1991) it gave rise to an issue whether the sentence of life imprisonment, with the incidents then attaching to it, was manifestly excessive. That issue could be considered in circumstances where the recommendation of the trial Judge had no legal effect and could be ignored, save as an expression of his view as to the criminality of the offenders. However, in the example I have given (where the legislation is introduced after sentence and before the appeal) that was to change. Once the amending legislation selected the non release recommendation as a trigger for certain adverse consequences, the issue concerning whether the sentence was manifestly excessive was more complex. The non release recommendation could no longer be ignored. The consequences it triggered were fundamentally indistinguishable from those that applied to the worst class of offender. If it was not open to view the offenders as falling within the worst class, then the sentence of life imprisonment, including a non release recommendation, with the incidents that attached to that recommendation, would be manifestly excessive. 171 So the issue on the sentence appeal, in the example I have given, would be whether the characterisation of the criminality of the offenders by the sentencing Judge, as falling within the equivalent of the worst class of offender, was open, as a matter of discretion. If it was, the appeal should be dismissed. If it was not, then the Court should find error and resentence. 172 Such an approach would not subvert the legislation, nor the policy which it embodied. Rather, it would consider whether the application of the legislation to these offenders and their crime gave rise to a sentence which was manifestly excessive. 173 Applying the various formulations of the exception, I believe this Court may look at the change in legislation in determining whether the sentence is manifestly excessive. Leave should be given, subject to one remaining issue. 174 The final issue is whether, by granting leave to appeal, this Court would subvert a valid exercise by Parliament of its legislative power. In my view, for the reasons already stated, it would not. Granting leave to appeal does not involve a challenge to the validity of the legislation or the policy which it embodies. The issue on this appeal is the application of that policy to these applicants. Is a sentence of life imprisonment, with the incidents now attaching to it since 1997, 2001 and 2005, manifestly excessive, having regard to their youth? 175 There is a further consideration that persuades me that it is appropriate to grant leave. The extract of the argument in the Court of Criminal Appeal in 1991 demonstrates, I believe, that the applicants, through counsel, attempted to deal with the matter that the legislature later selected as the trigger for certain penal consequences. The issue could not then be dealt with because it was then not relevant. However, the trigger having been selected, it is now relevant. Whilst a denial of natural justice may be necessary to establish jurisdiction to reopen the appeal, here there is jurisdiction (because the appeal orders have not been perfected). It is relevant that the applicants have not had an opportunity of addressing the appropriateness or otherwise of the non release recommendation in their cases, having regard to their youth (whether or not the absence of that opportunity amounts to a denial of natural justice). 176 Let me give an illustration. Assume the trial Judge made a finding of fact against the prisoners which they sought to challenge on appeal. Assume that, on the appeal, the issue was not determined because it was not then relevant or determinative. The appeal may have been dealt with upon other grounds. If the finding of fact were later selected as the trigger for adverse consequences (for instance, membership of a Triad gang), fairness would require that the appellants be given an opportunity to demonstrate that the finding was unwarranted in their case or unsupported by the evidence. They should have the opportunity of demonstrating that the trigger should not be applied to them. Such a challenge in no way subverts the Parliamentary intention to select that matter as the trigger for certain consequences. 177 In the same way, Messrs Blessington and Elliott should, in my view, have the opportunity to demonstrate that, in the context of their youth and circumstances, that the recommendation was unwarranted. It overlooked important legal principles concerning criminal responsibility of persons so young. 178 I believe, arguably, there has been a miscarriage of justice. I would grant leave to appeal.
Is the sentence manifestly excessive? 179 It may be accepted that Newman J, when making the non release recommendation, thought that the crimes committed by the applicants were so serious that "imprisonment for life should mean exactly that" (cf Baker v The Queen (supra) Gleeson CJ, para [9]). 180 However, the brutal nature of these crimes, whilst undoubted, is not the only issue. Mr Blessington had barely reached the age where he was presumed to be responsible in law. Mr Elliott was somewhat older, although not by much. Both were immature. A field officer with the Department of Youth and Community Services described Mr Blessington's presentation in these terms: "... Bronson's initial presentation upon being placed in custody was that of an exceptionally immature, almost infantile, confused and agitated young lad of fourteen years of age. He exhibited a facial twitch, ... His attention span was extremely limited ... also tended to live in a world of fantasy and fabrication in order to avoid unpleasant realities such as his incarceration." 181 Both applicants were, at that time, assessed as being intellectually below average. Their immaturity, I believe, was relevant to the crimes committed. They were in the company of Jamieson, who was an adult aged 22 years. The accounts of all three were so unreliable that the sentencing Judge was not able to determine with certainty the role of each. 182 Without in any way diminishing the extreme suffering of the victim, and the barbarity of the crime committed against her, I believe the sentence, with the incidents which it now has under the amending legislation, was manifestly excessive. By reason of their youth and immaturity, their crime could not be considered to be in the worst class. There was therefore error and a need to resentence.
Resentence. 183 Material was tendered relating to the present situation of each applicant. It was received upon the basis that it would be used in the event that the Court was called upon to resentence. 184 Dealing first with Mr Elliott, and commencing with material before Newman J, his early history was troubled. It was said that his father was violent towards him and his brothers. A cricket stump was sometimes used as a means of discipline. On 17 July 1984, when he was 12 years old, the Department of Community Services received a Child at Risk notification in relation to physical abuse. 185 Mr Elliott's last full year at school was Year 6. He then began to truant. He continued to truant throughout secondary school. At the time of his arrest he was employed as an apprentice fitter and turner. 186 Mr Elliott has now served almost 18 years. He has a good employment history. He has behaved well. Apart from three relatively minor charges in 2005, he has been disciplined three other times since 1988. 187 However, in 1994 Mr Elliott provided assistance to the police concerning a planned gaol escape. That fact became known within the prison. It was documented that a "contract" was put out to kill him. On 9 February 1995, he was transferred to the Special Purposes Centre, where he has remained. 188 Mr Elliott has had regular contact with psychological services because of a history of depression and self harm. A report from a clinical psychologist, dated 22 September 2005, included the following: "Mr Elliott has consistently reported overwhelming feelings of guilt, shame and remorse, and feeling that he does not have the right to live. Over the past five years (at least) he has been preoccupied with his own death as a way to relieve the pain of the victim's family. He has shown victim empathy that extends to the victim's family and friends, and to the broader community. These issues have been documented in his psychology file since he came into contact with psychological services and have been noted as an ongoing tormenting personal issue. Mr Elliott has discussed the process of Restorative Justice with psychological services for a number of years. So far the application process has not been completed due to the barrier of his chronic depression and chronic suicidal ideations, and due to indication from Restorative Justice unit that the application would not be approved." 189 Mr Elliott has undertaken a number of educational courses, including a trade qualification in carpentry and joinery, information skills and various certificate courses. A report from the Senior Education Officer of 12 September 2005 commented that, when discussing his further education, he appeared at first to be untrusting and beset by a sense of personal hopelessness. However, that was to change. The officer described her observations of Mr Elliott in these terms: "My personal observation is that Mr Elliott currently demonstrates he has the following attributes. · A genuine interest in helping others · An ability to follow direction · Suitable communication skills with staff and peers · An aptitude for peer support and working with other inmates in an assisting manner · A pro-active approach in determining his own educational pathway · A realistic expectation of his ability to achieve academically · An ability to communicate effectively with inmates with disability There have been several constructive sessions and a long term education plan is now in place." 190 Based upon this material, it appears that Mr Elliott's prospects of rehabilitation are good. The progress he has made demonstrates, I believe, the importance of the distinction between adults and young persons. With a young person, even someone who has committed a shocking crime, there are, to use the phrase of Gleeson CJ (supra: para [128]) "so many different possibilities as to what may happen", that it is unjust to punish them without the possibility of release. 191 Turning to Mr Blessington, and commencing with the material before Newman J, which describes his early life, Mr Blessington was the oldest of two children. His parents separated when he was six years old. According to a report by an officer from the Department, the separation appeared to have had a profound affect upon him. He did not see his father for two years. His behaviour at school deteriorated. 192 In 1982, Mr Blessington's mother formed a defacto relationship. Mr Blessington did not get on well with his stepfather and his behaviour further deteriorated. By the time of the offence, he was living on the streets. He had, since the age of 12, drunk heavily. 193 After his arrest, Mr Blessington was assessed by a clinical psychologist. He was illiterate. His intelligence was seen to be in the dull to normal range. 194 Mr Blessington, quite early in his incarceration, provided information to the authorities relating to other prisoners. He was, as a consequence, transferred to a regime of strict protection. He remains on protection and confined for much of the day to his cell. When asked by Dr Lucas, a psychiatrist, why he had provided the information, Mr Blessington responded as follows: "... He told me that at sixteen he had given his life to the Lord. He had a hard childhood, and his situation was 'full on extreme' when he gave his life to the Lord. He said that after he was taken into custody he cried daily about the crime. He went on to explain his attitude to giving information or intervening on behalf of others. He said that if someone's life is in jeopardy he would say something. He had stopped three stabbings in prison. Once when a prisoner was holding a knife behind his back intending to attack someone he had taken it from his hand. He said if anything like a stabbing occurred and he could have stopped it, it would be the equivalent of having blood on his hands." 195 Once he entered prison, steps were taken to teach him to read and write. Having acquired those skills, he was assessed by a psychologist, Mr Champion, in March 2006. Mr Champion reported a significant change. He said this: "[20] In sum, while Mr Blessington achieved consistent IQ scores in the low average range when assessed in 1987, his IQ scores are now solidly in the average range, (indeed some skills are in the upper average range). A change in assessed IQ of some 13 points (in the case of FSIQs), is not I think a chance effect, but reflects a change in his cognitive functioning over time. Certainly the ability to read and hence to study no doubt has improved his language based functioning, in that he now has a knowledge base to operate from, and a broader vocabulary. ..." 196 Dr Lucas made the following assessment of Mr Blessington's mental state in March this year: "There were no signs of psychiatric disorder during the interview, Mr Blessington gave no history of a serious disorder such as schizophrenia or mood disorder. ..." 197 Mr Champion, the psychologist, formed the same view. His report included the following: "[36] His presentation when seen did not suggest the presence of psychosis or major depression. His report did not indicate the current presence of obvious indicators of an adult anti-social personality disorder (as a development from the earlier conduct disorder), indeed his driven religious thinking perhaps suggests otherwise. ..." 198 Mr Champion added: "[50] In relation to the question of his 'development and maturation', I have commented above on the change over time in his physical and intellectual maturity. Further I think that there are indications of a man who is now focussed (albeit that the focus is a narrow one at times), who seems to have a capacity for self-control. ..." 199 During the 18 years of Mr Blessington's incarceration he has incurred fifteen breaches of gaol discipline, including a charge of assault occasioning actual bodily harm in 1998. The charge arose out of a fight with another prisoner. There have been no breaches in the past five years. Some of the offences have suggested drugs in his urine. He has acknowledged that he used cannabis periodically but has not done so for a number of years. 200 Mr Blessington is reported as now being very religious. Dr Lucas said that he gave every indication that his religious beliefs were strongly and genuinely held. Mr Champion said this: "[41] Mr Blessington spoke continually of the impact God had had on his life. He spoke of his beliefs serving to centre him and to stabilise him; to provide him with the emotional back-up which had allowed him in the end to acknowledge his guilt and responsibility, and cope with the enormity of what he had done. ..." 201 Mr Blessington has partly completed a theological certificate with the Moore Theological College. He intends to continue with these studies. Approximately seven years ago Mr Blessington received a visit from a woman attached to the Cabramatta Church Youth Group. She is a school teacher. She provided him with a bible. She now visits him twice a week and has done so for seven years. They share the hope that, if he is released, they will marry. 202 Mr Blessington told Mr Champion that he regretted his actions every day of his life. The report of Dr Lucas included the following: "He said further that he would like to be able to apologise to the family and would go to a meeting with the family if this were possible. He believed the family still did not want him to be released from prison and he understood this. He prayed for the family every day. At the time of the offences he did not know, could not fathom, the suffering he was to cause." 203 Mr Blessington has done a great deal to rehabilitate himself. Whilst there are blemishes on his gaol record, in terms of discipline, there have been none for some time. I believe the prospects of rehabilitation are good. 204 One then comes to the issue of sentence. I would not, at this point, differentiate between Mr Elliott and Mr Blessington. I believe the same sentence is appropriate in each case. It is unnecessary to make a finding of special circumstances. Inevitably, the non parole period that must be imposed will be long and will, I believe, be sufficient to provide the supervision which each will need upon release from gaol. 205 The crimes they each committed so long ago were indeed barbaric as Newman J said. The anguish caused to the family of Ms Janine Balding continues to this day. It will continue for the rest of their lives. Nonetheless, the sentence that may otherwise have been appropriate for an adult must, I believe, be moderated to take account of their youth. 206 The sentences should, in each case, be backdated to the date they entered custody, 9 September 1988.
In lieu thereof, that Matthew James Elliott be sentenced to 28 years imprisonment commencing on 9 September 1988 and expiring on 8 September 2016; with a non parole period of 21 years commencing on 9 September 1988 and expiring on 8 September 2009.
In lieu thereof, that Bronson Matthew Blessington be sentenced to 28 years imprisonment commencing on 9 September 1988 and expiring on 8 September 2016; with a non parole period of 21 years commencing on 9 September 1988 and expiring on 8 September 2009. 208 HOWIE J: I have received the benefit of reading the judgments in draft of both the Chief Justice and Kirby J. Notwithstanding the arguments raised by Kirby J and the cases to which he has referred, I am unable to agree, for the reasons given by the Chief Justice, that any unfairness or injustice arising by reason of the events following the passing of the sentences imposed upon the applicants should be addressed by this Court. I only wish to make a few very brief comments to underline why I find the judgment of the Chief Justice compelling. 209 I acknowledge that the applicants and those that support them might be sorely aggrieved that the inappropriate recommendation made by Newman J has resulted in sentences, the practical effect of which may be very substantially different from that which pertained at the time that the sentences were imposed and when they were originally considered by this Court. But that is the consequence of actions of the State's Parliament undertaken intentionally, apparently with a full appreciation of their consequences and, no doubt, in what it perceives to be the greater public interest. It is not, in my view, the function of this Court to review a course adopted by Parliament to protect the public, even if it were considered by members of this Court to be unreasonable or offensive to individual rights. It may be regrettable that Parliament has given effect to a recommendation that this Court thought should never have been made and was unable to revoke, but Parliament was entitled to take that course if it saw fit to do so. 210 There is no doubt that this Court has power to interfere with a sentence in order to address a miscarriage, or possible miscarriage, of justice arising as a consequence of events occurring after sentence. This is notwithstanding that no error can be demonstrated in the sentencing proceedings or the exercise of the sentencing discretion. But that power, as the Chief Justice observes and Kirby J concedes, is truly exceptional. There must, in my opinion, be a limit placed upon the nature of the events that can enliven that discretion. I do not believe that it is open to this Court to review a sentence simply because the manner in which it is to be served has changed since it was imposed as a result of action taken by the legislature. At the very least this Court should refuse to intervene where Parliament intended the change to affect persons such as the applicant then before the Court. This is because I do not believe it would be appropriate for this Court to exercise its jurisdiction in order to obstruct Parliament in the valid exercise of its power to legislate with respect to convicted persons generally or in a particular case. 211 In the recent past this Court has been vigilant to ensure that the will of Parliament is not frustrated by the misguided use of a court's power in order to avoid a statutory consequence that an individual judge or magistrate might believe will result in unacceptable unfairness or injustice. So in the "High Range PCA Guideline Judgement", (2004) 61 NSWLR 305, this Court cautioned against the use of the power to dismiss a charge under s 10 of the Crimes (Sentencing Procedure) Act in order merely to avoid the mandatory loss of a driver's licence that would follow a conviction of a PCA offence. A similar approach was taken in R v KNL (2005) 154 A Crim R 268 in respect of the mandatory consequences of a conviction of a child sexual offence pursuant to the provisions of the Child Protection (Offenders Registration) Act. In both cases Parliament had deemed it necessary the certain consequences were to follow upon a conviction for the protection of the public and this Court acknowledged that due deference was to be paid to that policy by the sentencing courts. 212 There is nothing by way of analogy or of principle in the cases where this Court has taken into account events subsequent to sentence that, in my respectful opinion, either mandates or warrants this Court reopening the appeal proceedings in the present case. The only purpose in doing so would be to relieve the applicants of the consequences of the recommendation made by Newman J in order to frustrate Parliament's intentional use of that recommendation as part of a statutory scheme to restrict the opportunity for the applicants to be released from the custodial part of their sentences. Parliament has seen it as necessary to take this course for the protection of the community in general. It is not for this Court to review the appropriateness of that decision. Insofar as that scheme might infringe international conventions or be inconsistent with normal sentencing principles or appear as incongruous with other statutory provisions dealing with the sentencing of young persons, that is, in my opinion, a matter for Parliament. If there is relief available to the applicants, or either of them, it must be found other than in this Court, the power of which is limited by the provisions and purposes of the Criminal Appeal Act. **********
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REGINA
Matthew James ELLIOTT and Bronson Matthew BLESSINGTON
[2004] HCA 45
[2004] WASC 52
[2004] WASCA 52
(2004) 219 CLR 562
(1981) 147 CLR 677
(1983) 153 CLR 52
(1990) 169 CLR 436
(1970) 124 CLR 192
(1938) 60 CLR 431
(1996) 189 CLR 51
(1989) 166 CLR 466
(2004) 61 NSWLR 305
(2004) 60 NSWLR 454
(1995) 36 NSWLR 184
(1931) 46 CLR 73
(1994) 179 CLR 427
(2003) 211 CLR 476
(1908) 7 CLR 277
(1976) 2 NSWLR 281
(1981) 2 NSWLR 177
(1984) 154 CLR 606
(1987) 44 SASR 587