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.