Citation: Regina v George Alfred McLeod [1999] NSWSC 78
Court: Supreme Court of New South Wales, Criminal Division
Date: 19 February 1999
Judge(s): Sully J
Background
The applicant had been convicted of murder following a jury trial before Lusher AJ in June 1990. The victim, a young woman, had visited the applicant's room on the day before he surrendered to police. After the two had sex, she asked him for one hundred dollars. The applicant responded by striking her repeatedly over the head with an iron bar he kept beside his bed for protection. She died from the injuries.
On 3 July 1990, Lusher AJ sentenced the applicant to penal servitude for life, commencing from 20 July 1989, the date the applicant first appeared in custody. A subsequent appeal to the Court of Criminal Appeal against conviction was dismissed, and no appeal against sentence was pursued.
The applicant appeared unrepresented before Sully J on 5 February 1999, seeking to have the life sentence redetermined by fixing a minimum term and an additional term under section 13A of the Sentencing Act 1989 (NSW).
Legal Issues
- Whether the life sentence imposed in 1990 should be redetermined into a structured sentence comprising a minimum term and an additional term under section 13A of the Sentencing Act 1989 (NSW)
- What weight to give to the circumstances of the offence, including the objective gravity of the killing
- How to treat the applicant's prior criminal history, given that Lusher AJ had expressly declined to take it into account at the original sentencing
- What minimum and additional terms were appropriate having regard to the statutory considerations under subsections 4A, 9, and 10A of section 13A
Decision
Sully J confirmed that the killing was objectively a particularly brutal murder, agreeing with Lusher AJ's characterisation. On the most favourable view of the facts, the applicant had killed the victim simply because she asked, unexpectedly, to be paid for sex. The iron bar had been wielded with significant force, as the post-mortem injuries demonstrated. The jury had rejected both provocation and intoxication as defences at trial.
Unlike Lusher AJ, Sully J was required by section 13A(4A) to have regard to the applicant's full criminal history, which the original sentencing judge had deliberately set aside. That history included eleven matters, among them offences of breaking and entering, stealing, and most seriously, malicious wounding with intent to cause grievous bodily harm, for which the applicant had received a substantial period of imprisonment.
After working through the mandatory statutory considerations in subsections 4A, 9, and 10A of section 13A, Sully J determined that it was appropriate to redetermine the sentence. The Court fixed an aggregate sentence of 17 years, structured as a minimum term of 12 years and an additional term of 5 years.
Orders Made
- In lieu of the sentence imposed on 3 July 1990, an aggregate sentence of 17 years is imposed, comprising a minimum term of 12 years and an additional term of 5 years
- The minimum term commences on 20 July 1989 and expires on 19 July 2001
- The additional term commences on 20 July 2001
Key Takeaways
- Section 13A of the Sentencing Act 1989 (NSW) provides a mechanism for redetermining a sentence of life imprisonment into a fixed minimum term and additional term, and the Supreme Court must apply specific statutory criteria in doing so.
- Under section 13A(4A), a court conducting a redetermination is required to have regard to the applicant's full criminal history, even where the original sentencing judge had deliberately excluded that history from consideration.
- The jury's rejection of both provocation and intoxication at trial remained relevant to the sentencing court's assessment of culpability at the redetermination stage.
- An aggregate sentence of 17 years (12 years minimum, 5 years additional) was considered appropriate for a brutal murder committed with significant deliberate force, by an offender with a serious prior criminal record including a prior conviction for wounding with intent.
- Redetermination proceedings under section 13A do not reopen or disturb the underlying conviction; the scope of the application is limited to the fixing of a structured sentence in place of the original life term.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW), section 13A (including subsections 4A, 9, and 10A)
Cases:
- No cases were cited in the portions of the judgment available for review.