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Supreme Court 11 May 1999

Regina v McDONNELL

[1999] NSWSC 792

Also reported as (1999) 107 A Crim R 151
Assault & violenceHomicide
BREACH OF CONDITION MANY YEARS LATER ARREST DETERMINATION OF LIFE SENTENCE.

Citation: Regina v McDonnell [1999] NSWSC 792
Court: Supreme Court of New South Wales (Criminal Division)
Date: 11 May 1999
Judge(s): Smart AJ

Background

The applicant had been convicted of murder and sentenced to life imprisonment in April 1978. He was released on licence in June 1983, after serving approximately five years and nine months. The licence was issued in standard form but contained well-documented deficiencies: on its face it appeared to be a five-year licence, and after that supervision period expired in June 1988, the applicant was told by his Probation and Parole Officer that his licence had expired and he was free to go.

The applicant, a man of very limited literacy, genuinely believed he had completed his sentence. He was unaware that, properly construed, the licence continued for the unexpired portion of his life sentence and that its good-behaviour conditions remained in force indefinitely.

More than fifteen years after his release, the Parole Board revoked his licence in July 1998 following his conviction for assault in the Albury Local Court and his subsequent breach of a community service order. He was re-arrested in August 1998. The revocation triggered this application under section 13A of the Sentencing Act 1989 to have the life sentence converted to a fixed minimum term and additional term.

  • Whether the life sentence should be re-determined by substituting a minimum term and additional term under section 13A of the Sentencing Act 1989.
  • How to calculate the appropriate minimum term, having regard to the time actually served in custody, the extended period spent on licence in the community, and the misleading nature of the licence document.
  • What weight, if any, to give to the Executive's earlier administrative assessment that fewer than six years' imprisonment was sufficient.
  • Whether the applicant was required to serve any further time in custody before becoming eligible for parole.

Decision

Smart AJ examined the circumstances of the original offence, a confrontation that resulted in the death of a heavily intoxicated man after the applicant punched him twice and, on eyewitness evidence, kicked him approximately five or six times while he lay on the ground. The applicant had always denied the kicking, but two independent witnesses observed it and described it as vicious. The court also took into account the applicant's background, his limited education, and his broadly satisfactory conduct during the supervised licence period despite some minor offending and episodes of excessive drinking.

The court identified the licence documentation as genuinely confusing. Drawing on the Court of Criminal Appeal's analysis in R v Boylan, Smart AJ accepted that the licence on its face appeared to be a five-year instrument, and that the applicant had been expressly told by his supervising officer in 1988 that the licence had expired. The court found this was directly relevant to the applicant's culpability for the later breach: had he understood his true legal position, he would likely have taken greater care to avoid any further offending.

In fashioning the re-determined sentence, the court adopted a structured approach. It credited the six and a half years actually served in custody, applied a significant allowance for the five years of close supervised licence, a lesser allowance for the subsequent unsupervised years on licence, and factored in the misleading nature of the licence document. The court also took note of the Executive's earlier assessment that under six years' imprisonment had been sufficient. Weighing all of these considerations, Smart AJ concluded the applicant should not be required to serve any further time in prison.

The court structured the sentence as a minimum term of 16 years (commencing 11 September 1977, expiring 10 September 1993) and an additional term of 12 years commencing 11 September 1993. Because the minimum term had long since expired, the applicant became immediately eligible for consideration by the Parole Board. The court noted that supervision conditions prohibiting consumption of alcohol should be incorporated into the applicant's release documents.

Orders Made

  • The life sentence was replaced with a sentence of penal servitude comprising:
  • A minimum term of 16 years commencing 11 September 1977 and ending 10 September 1993.
  • An additional term of 12 years commencing 11 September 1993.
  • The court indicated that supervision conditions relating to alcohol should be included in the applicant's release documents upon his release on parole.

Key Takeaways

  • Under section 13A of the Sentencing Act 1989, a court re-determining a life sentence must weigh not only time spent in custody but also the period spent on licence in the community, with the degree of weight depending on the level of supervision during that period.
  • Defective licence documentation that was misleading on its face was treated as a relevant mitigating consideration in assessing the seriousness of the licence breach and in calibrating the re-determined sentence.
  • The Executive's earlier administrative assessment of the period of imprisonment considered sufficient for the offence is a relevant, though not determinative, factor in re-sentencing proceedings under section 13A.
  • Where a minimum term fixed retrospectively has already expired by the time of re-determination, the practical consequence is that the offender becomes immediately eligible for parole consideration rather than being required to serve further time in prison.
  • A licence issued under section 463 of the Crimes Act 1900 operates for the unexpired balance of a life sentence, regardless of any shorter supervision period stated in the document. The confusion created by standard-form licences of this era had been identified previously by the Court of Criminal Appeal in R v Boylan.

Legislation and Cases Referenced

Legislation:
- Section 13A, Sentencing Act 1989 (NSW)
- Section 463, Crimes Act 1900 (NSW)

Cases:
- R v Boylan (unreported, Court of Criminal Appeal, 21 February 1995)
- R v Slater and R v Fuller (1982) 6 A Crim R 424
- R v King (unreported, Court of Criminal Appeal, 24 February 1998)
- R v Irving (Wood CJ at CL, unreported, 10 June 1998)