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Supreme Court 23 July 1999

Regina v Lee

[1999] NSWSC 773

Homicide
DETERMINATION OF LIFE SENTENCE S 13A SENTENCING ACT 1989

Citation: Regina v Lee [1999] NSWSC 773
Court: Supreme Court of New South Wales
Date: 23 July 1999
Judge(s): Levine J

Background

The applicant had been convicted of murder and sentenced to life imprisonment by McInerney J on 16 February 1990. The sentence commenced on 19 October 1988. The offence involved the killing of a young woman by stabbing her 23 times, in circumstances the original sentencing judge described as exhibiting "utmost savagery and brutality."

The applicant applied under section 13A of the Sentencing Act 1989 for a re-determination of his life sentence. That provision allows a court to substitute a fixed term for a life sentence by assessing the objective gravity of the offence alongside factors arising after sentencing, including rehabilitation and future dangerousness.

The Crown did not oppose the application, though it submitted that the serious objective facts, the absence of contrition, and the applicant's continued maintenance of his innocence could not be overlooked in fixing the new sentence.

  • Whether the applicant's life sentence should be re-determined under section 13A of the Sentencing Act 1989
  • What weight should be given to the objective gravity of the offence when post-sentence mitigating factors are present
  • How the applicant's continued maintenance of innocence and absence of contrition should be treated in the re-determination
  • What minimum and additional terms were appropriate given the balance of relevant factors

Decision

Levine J agreed with the original sentencing judge that the objective circumstances of the murder were horrifying and called for a very heavy penalty. The applicant had stabbed the deceased 23 times during what the jury and sentencing judge found was a sexual assault, and the applicant had never accepted responsibility for the offence.

The court acknowledged that the applicant had made some progress since sentencing. He was described as industrious, not inherently evil, and had developed some contact with the outside world through family members of a fellow inmate. A psychological report prepared by Dr Roger Blake was before the court, and the applicant expressed hope of finding employment upon release.

However, Levine J was firm that post-sentence progress could not disproportionately diminish the objective gravity of the offence. The applicant's continued maintenance of innocence meant he had displayed no contrition. While this was not treated as an absolute bar to re-determination, it was a factor the court could not overlook.

Weighing all relevant factors, the court concluded that a total term of 21 years was appropriate, comprising a minimum term of 16 years and an additional term of 5 years, both commencing from the date the sentence originally began.

Orders Made

  • The application for re-determination under section 13A of the Sentencing Act 1989 was granted
  • The applicant was sentenced to a total term of 21 years penal servitude, commencing 19 October 1988
  • A minimum term of 16 years was fixed, commencing 19 October 1988 and expiring 18 October 2004
  • An additional term of 5 years was fixed, commencing 19 October 2004 and expiring 18 October 2009
  • The applicant was made eligible for release to parole on 18 October 2004

Key Takeaways

  • Under section 13A of the Sentencing Act 1989, a court re-determining a life sentence must weigh post-sentence developments, including rehabilitation and future dangerousness, but cannot allow those factors to disproportionately diminish the objective gravity of the original offence.
  • A continued maintenance of innocence after conviction on a plea of not guilty does not automatically prevent re-determination, but the absence of contrition it reflects remains a factor the court must weigh.
  • Where alcohol was not found to be a mitigating factor by the original sentencing judge, it could not be elevated to that role on re-determination; it remained at most a partial explanation for conduct, not an excuse.
  • Progress towards rehabilitation, including industriousness and engagement with psychological support, is relevant to re-determination even where an applicant has not given evidence before the re-determining court.
  • The Supreme Court treated the Crown's non-opposition as relevant context but reached its own independent assessment of the appropriate minimum and additional terms based on the full range of sentencing considerations.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), section 13A

Cases:
- Regina v Raymond Leslie White (Court of Criminal Appeal, 23 June 1998)
- Regina v Stephens [1999] NSWCCA 80
- Regina v Brett Leroy Ellison (Levine J, 13 March 1998)