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Supreme Court 8 April 1999

R v Maiden

[1999] NSWSC 311

Homicide
CRIMINAL LAW SENTENCING DETERMINATION OF LIFE SENTENCE.

Citation: R v Maiden [1999] NSWSC 311
Court: Supreme Court of New South Wales (Criminal Division)
Date: 8 April 1999
Judge(s): Dunford J

Background

The applicant had been convicted of the murder of a 17-year-old hitchhiker in November 1987 at Glenreagh, NSW. He and a co-offender, both escaped convicts, had picked the victim up along the Pacific Highway, befriended him, and then killed him by breaking his neck before burying his body in a shallow grave. The Crown alleged the killing was premeditated and motivated by a fear the victim would alert police to their presence and criminal plans.

Hunt J sentenced the applicant to life imprisonment at Grafton on 22 September 1988. The applicant was 21 years old at the time of the offence and had a background of institutional care from early childhood, followed by a series of property and dishonesty offences from the age of 15.

The applicant applied to the Supreme Court for re-determination of his life sentence under s 13A of the Sentencing Act 1987. The Crown neither supported nor opposed the application.

  • Whether the life sentence should be re-determined and replaced with a finite term of penal servitude under s 13A of the Sentencing Act 1987
  • What minimum and additional terms were appropriate given the objective seriousness of the offence, the applicant's criminal history, and his conduct and rehabilitation in custody
  • How to account for other concurrent and cumulative sentences the applicant was serving when calculating the appropriate minimum term for the murder, without effectively leaving those other offences unpunished
  • Whether the principle of totality required an adjustment to the sentence imposed for the murder

Decision

Dunford J accepted that the killing was deliberate, callous, and premeditated. The victim had been befriended and given a lift before being killed because the offenders feared he might inform police. While the judge accepted that the applicant was not the instigator and was under the influence of an older co-offender at the time, these were matters of limited mitigation given the gravity of the offence.

The judge reviewed the applicant's conduct in custody at some length. The applicant had undertaken and completed educational and vocational programs, maintained employment within the prison system, progressed through security classifications, and received generally positive assessments from correctional and psychological staff. These factors supported a finding that the life sentence should be re-determined.

On the question of how to fix the sentence, Dunford J applied the principle from R v Purdey that the sentencing court cannot make the fresh sentence cumulative on other sentences the prisoner was already serving. Instead, where the prisoner has served other sentences, the murder sentence must be made longer to ensure those other offences do not go effectively unpunished, provided the murder sentence remains individually proportionate to that offence. The applicant had been serving sentences for escape and offences committed while at large until 26 March 1995.

Applying the totality principle, the judge fixed a minimum term that was considerably shorter than would have been appropriate for the murder in isolation, reflecting that the overall burden of punishment across all sentences had to remain proportionate. The minimum term was set to commence from the date the original sentence began (21 September 1988), in accordance with the approach confirmed in R v Purdey.

Orders Made

  • The applicant was re-sentenced to penal servitude for a minimum term of 18 years and 6 months, deemed to have commenced on 21 September 1988
  • An additional term of 6 years was fixed
  • The earliest date of eligibility for release on parole was set at 20 March 2007

Key Takeaways

  • Under s 13A of the Sentencing Act 1987, a Supreme Court judge conducting a re-determination of a life sentence must fix a finite minimum and additional term, with the minimum term backdated to the commencement of the original sentence.
  • A sentencing court conducting a s 13A re-determination cannot make the fresh sentence cumulative upon other sentences the prisoner was serving at the time of the original life sentence; instead, any other outstanding offences must be reflected by lengthening the murder sentence itself, provided the result remains proportionate.
  • The principle of totality applies to s 13A re-determinations, with the consequence that the effective additional minimum term attributable to the murder may be reduced to avoid an aggregate sentence that is disproportionate across all offences.
  • Evidence of sustained rehabilitation, educational and vocational achievement in custody, and favourable psychological assessments are relevant to a s 13A application, though they operate within the framework of proportionate punishment for a very serious offence.
  • R v Purdey (1992) 65 A Crim R 441 (as affirmed by the Court of Criminal Appeal) was the controlling authority on both the backdating of the sentence and the method for incorporating other outstanding sentences into the re-determination.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1987 (NSW), s 13A

Cases:
- R v Purdey (1992) 65 A Crim R 441 (affirmed on appeal at 31 NSWLR 668)
- R v Haggart (unreported, Dunford J, 19 November 1993)