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Supreme Court 26 May 1999

REGINA v GIDLEY

[1999] NSWSC 498

Homicide
CRIMINAL LAW AND PROCEDURE SENTENCING DETERMINATION OF LIFE SENTENCE

Citation: Regina v Gidley [1999] NSWSC 498
Court: Supreme Court of New South Wales (Criminal Division)
Date: 26 May 1999
Judge(s): Bell J

Background

The applicant had been convicted in April 1983 of two counts of murder following the brutal killing of an elderly couple at their home in Naremburn in January 1982. The victims, both in their seventies, were beaten to death with the butt of a sawn-off shotgun. The applicant was an escapee from custody at the time of the offences.

Following his convictions for murder, the applicant also pleaded guilty to a lengthy series of related offences committed in the weeks surrounding the murders. These included armed robbery, robbery with striking, four counts of kidnapping, escape from lawful custody, possession of a shortened firearm, and various dishonesty and property offences. Mr Justice Roden imposed mandatory life sentences for the murders, as the law then required, along with concurrent determinate sentences for the other matters.

The application before Bell J was brought under section 13A(2) of the Sentencing Act 1989, which allows prisoners serving pre-existing life sentences to apply for the court to set minimum and additional terms. This process replaced the indefinite nature of the original sentences with a structured parole framework.

  • Whether minimum and additional terms should be set for the two life sentences, replacing the indeterminate sentences originally imposed
  • What minimum term was appropriate given the objective gravity of the double murder, the applicant's criminal history, and the circumstances of the offending
  • Whether an additional term for the remainder of the applicant's natural life was warranted, or whether a fixed additional term was appropriate
  • What weight to give to the applicant's psychiatric history, specifically a diagnosis of paranoid schizophrenia, and his conduct and rehabilitation during imprisonment

Decision

Bell J accepted that the murders were of the utmost gravity. The two victims were elderly and entirely vulnerable, the violence was extreme, and the applicant was armed with a sawn-off shotgun when he entered their home. The killings occurred during what was a sustained criminal spree while the applicant was unlawfully at large, a significant aggravating feature.

The court received psychiatric evidence from Dr Lucas confirming a long-standing history of paranoid schizophrenia, with signs of mental illness apparent as early as 1980 or 1981. Bell J accepted this evidence and found that the applicant's condition had fluctuated throughout his imprisonment. The court also accepted evidence that the applicant had been compliant in custody, engaged in activities including pottery and music, and intended to continue with his medication. Bell J assessed his prospects for rehabilitation as good.

On comparable cases, including others involving double murders where escape from lawful custody was an aggravating feature, Bell J considered that minimum terms in the range set by similar authorities were appropriate. The court declined to impose an additional term for the remainder of the applicant's natural life, noting his age of approximately 50 and the recommendation from Dr Lucas that supervision following release was warranted. A fixed additional term of 11 years was considered sufficient to provide that supervision.

Orders Made

  • Application for determination of minimum and additional terms granted
  • Minimum term of 19 years imposed on each murder conviction, commencing 8 March 1982 and expiring 7 March 2001
  • Additional term of 11 years imposed on each murder conviction, commencing 8 March 2001

Key Takeaways

  • Under section 13A of the Sentencing Act 1989, prisoners serving mandatory life sentences imposed before sentencing reforms could apply to the Supreme Court for minimum and additional terms to be set in their place.
  • A diagnosis of paranoid schizophrenia, and evidence that mental illness predated the offending, can be relevant to the sentencing exercise on re-determination, particularly when assessing rehabilitation prospects and the appropriate length of the additional (supervisory) term.
  • The status of being an escapee at the time of the murders was treated as a significant aggravating circumstance, consistent with the approach in comparable authorities.
  • An additional term for the remainder of a prisoner's natural life is not automatically warranted in cases of double murder; the court found that a fixed additional term of 11 years was appropriate given the applicant's age, rehabilitation, and the psychiatric recommendation for post-release supervision.
  • The court's comparison with sentences in similar double-murder cases, including cases where escape was a feature, informed the calibration of the 19-year minimum term.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), particularly s 13A
- Mental Health Act 1990 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW)

Cases:
- Regina v Twala (unreported, CCA, 4 November 1994)
- Regina v Kalazich (1997) 94 A Crim R 41
- Regina v Previtera (1998) 94 A Crim R 76
- Regina v Fenech (4 September 1997)
- Regina v Purdey (1993) 65 A Crim R 441
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Regina v Dennis (unreported, CCA, 28 October 1992)
- Power v The Queen (1974) 131 CLR 623
- Regina v Maclay (1990) 19 NSWLR 112
- Regina v Leaver (unreported, CCA, 23 November 1994)
- Regina v Robinson (28 November 1997)
- Regina v Spinks (unreported, CCA, 7 August 1997)
- Regina v Bell (18 April 1995)
- Regina v Salameh (15 December 1998)
- Regina v Alexander (7 May 1999)