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Supreme Court 23 April 1999

REGINA v. CARR

[1999] NSWSC 396

Homicide
MURDER SENTENCE LIFE SENTENCE DETERMINATION.

Citation: Regina v Carr [1999] NSWSC 396
Court: Supreme Court of New South Wales (Criminal Division)
Date: 23 April 1999
Judge(s): Greg James J

Background

The applicant had been convicted of murder following a jury trial in 1988, after the killing of a man on 21 September 1987. The trial judge, Mathews J, imposed a sentence of penal servitude for life, describing the killing as a brutal, savage, and completely unprovoked attack. The victim's throat had been cut at a time when he was unconscious or near unconscious. The sentencing judge found no mitigating circumstances whatsoever and held the applicant bore full responsibility.

The killing arose from a grudge the applicant had nursed following an earlier dispute with the deceased, which had itself resulted in the applicant serving a prison term for malicious wounding. At the time of sentencing for the murder, the applicant was 21 years old, and the sentencing judge noted that the then-current legislation left her no discretion but to impose a life sentence in the absence of mitigating circumstances.

The applicant subsequently sought re-determination of his sentence under s 13A of the Sentencing Act, asking the Supreme Court to replace the life sentence with a fixed minimum term and an additional term. The Crown did not oppose the application.

  • Whether the life sentence should be re-determined under s 13A of the Sentencing Act by substituting a minimum term and an additional term
  • What minimum term was appropriate, having regard to the circumstances of the offence, the applicant's criminal history (including conduct in custody), his age, background, and prospects for rehabilitation
  • What additional term was appropriate in the circumstances

Decision

Greg James J conducted the re-determination as required by s 13A, considering all circumstances of the original offence, all offences of which the applicant had been convicted, and the reports of the Serious Offenders Review Council. The court noted the applicant's in-custody record included assaults, malicious damage, drug-related conduct, and possession of sharpened implements described as "shivs," though the latter were said to be held for self-protection in a difficult prison environment.

On the question of rehabilitation, the court acknowledged that the applicant's continued insistence on his innocence cast some doubt over complete rehabilitation. However, Greg James J gave that factor limited weight, noting that the applicant had expressed to a psychiatrist, Dr Lucas, that he had come to terms with his situation and wished to work toward release to rejoin his family. The applicant expressed remorse that the deceased had died, though not remorse for the killing itself.

The court balanced the gravity of the offence, which was aggravated by premeditation in the form of a nursed grudge, against subjective factors including the applicant's youth at the time, his disadvantaged upbringing, the absence of prior planning in a strict sense, and his more recent constructive conduct in custody. Greg James J accepted that a minimum term in the range of 13 to 14 years was appropriate, and settled on 13 years and six months, with an additional term of six years.

Orders Made

  • The life sentence was replaced under s 13A of the Sentencing Act with a minimum term and an additional term
  • Minimum term: 13 years and 6 months penal servitude, commencing 1 October 1987 and expiring 31 March 2001
  • Additional term: 6 years, commencing 1 April 2001 and expiring 31 March 2007

Key Takeaways

  • Under s 13A of the Sentencing Act, the Supreme Court may substitute a minimum term and additional term in place of a life sentence, with the substituted sentence backdated to the original commencement date in custody.
  • An applicant's continued assertion of innocence does not automatically foreclose a favourable re-determination, particularly where psychiatric evidence indicates the applicant has otherwise come to terms with their circumstances.
  • Aggravating factors such as a grudge-motivated killing are relevant to fixing the minimum term on re-determination, even where the original sentencing judge had no discretion and was required by statute to impose a life sentence.
  • The court considered in-custody offending, including drug use and possession of contraband, as part of the overall picture of the applicant's conduct, without treating any single factor as determinative.
  • Youth at the time of the offence is a specific statutory consideration under s 13A(9)(d) and was weighed alongside culpability, background, and prospects for reintegration.

Legislation and Cases Referenced

Legislation:
- Sentencing Act (NSW), s 13A (re-determination of life sentences)
- Crimes Act (NSW), s 19A (as it stood in 1988, mandating life imprisonment for murder in the absence of mitigating circumstances)

Cases: No cases were cited in the judgment text provided.