REGINA v. ROSE [1999] NSWCCA 327

No. 60520 of 1998 CORAM: SULLY, J. HIDDEN, J. GREG JAMES, J.

1 SULLY, J: I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: An application for leave to appeal to the Court of Criminal Appeal against the severity of sentence is determined in accordance with the criteria under s.6(1) and (3) of the Criminal Appeal Act 1912. The appeal will only be successful if the court concludes that because of some error in the exercise of the sentencing discretion (House v. The King (1936) 55 CLR 499) the court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed; in which case the court shall quash the sentence and pass such other sentence in substitution thereof and in other cases shall dismiss the appeal. 3 In the present case leave to appeal is sought in respect of five life sentences imposed in respect of five murders which were conceded by the applicant's counsel to be such that it was open to the court to come to the conclusion that the total criminality of those five murders constituted a worst case category warranting the imposition of life sentences pursuant to s.19A of the Crimes Act 1900. 4 The trial judge accepted that concession but appropriately concluded, for himself through the making of findings of his own in that regard and findings on an ultimate evaluation of the totality of criminality taking into account the evidence relating to all aspects, that the offences did fall into the worst case category (as he said at pp.35-36 of his lengthy and detailed remarks on sentence) and that no case had been made out for the applicant under s.442B of the Crimes Act to reduce the sentence otherwise to be imposed by reason of the prisoner's co-operation with the authorities. His Honour said:- "… when one totals up, as it were, the crimes, the criminality, the career of breaches against the criminal law to which the so-called confessions and admissions were made by this prisoner and weighs against their individual and overall utility, the objective and horrific seriousness of the five killings to which he has pleaded guilty, one cannot come to any other view than that to allow a reduction by reason of this so-called assistance to authorities and promises of co-operation, would produce a sentence unreasonably disproportionate to the nature and circumstances of the five murders with which this sentencing procedure is concerned. This prisoner has indicated no contrition or remorse; he had admitted to the violent murder of five people, murders of revenge and gangland style and of opportunity. A submission was made for him that he should be entitled to 'see the light at the end of the tunnel': a light, I suppose, that to some extent can be compared to that which he extinguished so brutally in each of his victims. I am not prepared to accede to that submission. There is simply no warrant for leniency in this case even taking into account the burden of custody under protection and the 'positive' advanced for him - assistance to authorities - if given the weight sought, would result in a sentence disproportionate to the criminality." 5 His Honour went on to consider one of the other matters to which s.442B refers and that is the effect of the offences on the victims or the families of the victims. 6 His Honour at p.41 of his remarks said, and this is in relation to the policy of encouraging co-operation with the authorities:- "That policy cannot, however, be permitted to apply to the exclusion absolutely of cases where the objective seriousness of the killings, as in this instance where there is an absence of contrition, otherwise requires punishment with the full rigour of the law". 7 He then sentenced the prisoner in accordance with s.19A. 8 Punishment for crimes of murder in this State was at the relevant time fixed by s.19A and that section provided, by s.19A(1), that the person who committed the crime of murder was liable for penal servitude for life. Section 19(2) reads:- "The 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." 9 Section 19(3) preserved the operation of s.442 which authorised the imposition of a lesser sentence than penal servitude for life. The section applied to offences committed both before and after the commencement of the section and it also preserves to the executive the exercise of the prerogative by s.19A(6). 10 A consequence of the sentence thus provided for, as has properly been pointed out by Mr. Nicholson, SC., who appears for the applicant, is that the provisions of the Sentencing Act 1989 which might otherwise have permitted an additional term to be given, are excluded. This is, as Mr. Nicholson has conceded, a consequence of the fact that the sentence is for the whole of the prisoner's natural life. 11 It has been argued here that the trial judge fell into error in failing to consider a determinate sentence which would permit of a possibility of the prisoner being released at some time during his life. When his Honour referred to the submission concerning "light at the end of the tunnel", it seems to me that his Honour considered exactly that matter. I would reject the criticism that suggests that his Honour did not consider that matter. 12 It has also been submitted that his Honour fell into error in principle in concluding that these were offences to which the sentence under s.19A should be applied in consequence of failing to give proper weight to the fact that those sentences would be served without the prospect of any future liberty. In particular our attention was drawn to a passage in his Honour's judgment in which his Honour found: "There is a complete absence of facts, I am satisfied, mitigating the seriousness of the crimes themselves (cf. Regina v. Rathurell (unreported, NSW Supreme Court, 3 October 1997) per Hunt, CJ. at CL. at 12). I am entitled to take the view on examination of each particular homicide, that it is of the worst category case and more appropriately, in my opinion in the circumstances of this plea, the totality of the criminality involved in the five homicides ( The Queen v. Griffiths (1989) 167 CLR 372). Thus the position is reached that examining only the objective circumstances of the murders committed by this prisoner, the conclusion inevitably must be arrived at that they were heinous and brutal and that the appropriate sentence is that of natural life as provided by s.19A of the Crimes Act." 13 His Honour considered whether there were any subjective circumstances, including those matters to which I have already adverted, as applicable to the prisoner's sentence under s.442B of the Crimes Act as might draw the criminality of the prisoner back over the line to a point where the prisoner is entitled "by reason of matters said to mitigate sentence to other than sentences for his natural life". He concluded there was nothing which had such an effect. 14 In the event that there is error in that process his Honour undertook, that error would seem only to lie in embarking upon a two-stage process rather than a single stage balancing and evaluation of relevant matters (see the remarks of his Honour Mr. Justice McHugh in AB v. The Queen (High Court, unreported 9 September 1999). 15 In the result, however, there can be no complaint of the course that was taken in the upshot by his Honour, since his Honour considered all matters that might go to subjective mitigation in a way which in totality enabled him to consider whether or not the life sentences were appropriate. 16 One can examine just what course might have to be taken in the event that the life sentences as a matter of totality were not to be regarded as appropriate. That would require each life sentence to be set aside and a determinate sentence to be passed in respect of each murder, otherwise one would be left still with the effect of a life sentence. His Honour concluded that a reduction which would avoid that effect would be unduly disproportionate. I agree. 17 The crimes were horrific. Indeed, when one looks at the objective features it appears that for 10 years or more the prisoner has, on his own admission, embarked on a continuous course of serious crimes of which these five murders were, to put not too fine a point on it, the highlights. The co-operation he has afforded to the authorities involved his inculpation of himself in his own crimes, his inculpation of his associates and his inculpation of a policeman he had corrupted to conceal some of his crimes. It is this, that he says, should entitle him to have a reduction in sentence for these same crimes and he says the trial judge fell into error for failing to reduce his sentences in the way I have described. 18 The submissions made on his behalf have been most earnest and detailed. There can be no doubt this case fell within the worst class of case. There can be no doubt that his Honour held against any of the subjective matters drawing the case back across the line. 19 We are only to interfere in the event of error; I can find no error. In my view leave to appeal should be granted but the appeal dismissed. 20 SULLY, J: I entirely agree. 21 HIDDEN, J: I also agree, although only after anxious consideration. In Regina v. Garforth (CCA, unreported 23 May 1991), this court commented (at p.11 of a joint judgment) on the "terrible significance" of the sentence of life imprisonment. Life imprisonment under s.19A of the Crimes Act is an extremely blunt instrument. There is much to be said for the power of the court to specify a minimum term in association with a life sentence under that section but the legislature has chosen not to confer that power. 22 I think there is also much to be said in some cases of very serious murders for a very long determinate sentence, although I don't think such a sentence should be one which would exceed the reasonable life expectancy of the prisoner. With that sentence it might be appropriate to specify a substantial minimum term which would permit of the prisoner's release only in his or her old age. 23 That said, his Honour did not consider this such a case. This was an unusual and difficult case and in the event I am also not persuaded that his Honour fell into error. 24 SULLY, J: The orders of the court are:-

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