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Supreme Court 20 August 1999

Regina v Le

[1999] NSWSC 993

Homicide
CRIMINAL LAW AND PROCEDURE LIFE SENTENCE REDETERMINATION

Citation: Regina v Le [1999] NSWSC 993
Court: Supreme Court of New South Wales (Common Law Division)
Date: 20 August 1999
Judge(s): Michael Grove J

Background

The applicant had been convicted by a jury of murder in 1994 and sentenced by the same judge to mandatory life imprisonment. The crime occurred in September 1988, when a group of five young men broke into a house and the applicant fatally stabbed a man who had simply come out of his caravan to investigate the commotion. The applicant had been in custody from 28 September 1988, and his sentence was backdated to run from 29 September 1988.

At the original sentencing, the court declined to find mitigating circumstances that would have reduced the applicant's culpability below the threshold for the mandatory life term. Years later, the applicant lodged an application under section 13A of the Sentencing Act 1989, which allows a prisoner serving a life sentence to seek redetermination after at least eight years have been served.

The Crown appeared at the hearing, as did counsel for the applicant. Family members of the deceased were also present in court, a fact Michael Grove J acknowledged in his decision to deliver reasons immediately rather than reserving judgment.

  • Whether, under section 13A of the Sentencing Act 1989, the life sentence imposed in 1994 should be redetermined and replaced with a finite term
  • What minimum and additional terms were appropriate, having regard to the applicant's subjective circumstances, rehabilitation, and the practice of release on licence that existed prior to the Sentencing Act

Decision

Michael Grove J delivered judgment ex tempore, having already reached a firm conclusion. His Honour noted that the historical practice of releasing life sentence prisoners on ticket of leave, a practice stretching back to European settlement, was the context in which mandatory life sentences had always operated. The Sentencing Act itself reflected this history by permitting redetermination applications after eight years.

On the applicant's subjective circumstances, the court accepted that the applicant had no genuine memory of committing the offence but had consistently accepted, on the basis of others' evidence, that he had done so. His expressions of remorse were found to be genuine. The court noted the applicant's background as a Vietnamese migrant, early exposure to alcohol through his family's fishing community, and a diagnosis of alcoholism at the time of the offence.

The court acknowledged a difficult period during incarceration, including drug use and a suicide attempt in early 1999, which the court attributed in part to frustration at the lengthy delay in having the redetermination application listed. More recently, however, the applicant had demonstrated a genuine attempt at rehabilitation. His prison work reports were commendable, and his marriage to a settled, employed partner whom the court found credible on affidavit weighed in his favour.

Grove J noted that redetermination did not carry an automatic right to release: the parole authorities would retain the final decision on whether the applicant was ready for release at the expiry of the minimum term. A long additional term was set not because the court expected supervision throughout, but to preserve a mechanism for return to custody should the applicant fail to meet the promise he currently showed.

Orders Made

  • The sentence of penal servitude for life imposed on 14 October 1994 was set aside
  • In its place, a total sentence of 20 years' penal servitude was imposed, commencing 29 September 1988
  • Minimum term: 12 years, commencing 29 September 1988 and expiring 28 September 2000
  • Additional term: 8 years, commencing 29 September 2000
  • First eligible for parole: 28 September 2000

Key Takeaways

  • Under section 13A of the Sentencing Act 1989, a court may redetermine a mandatory life sentence once the prisoner has served at least eight years, replacing the indeterminate term with a finite total sentence comprising minimum and additional terms.
  • The historical practice of releasing life sentence prisoners on ticket of leave informed the court's approach; the Sentencing Act was found to reflect that tradition by providing the redetermination mechanism.
  • Setting a minimum term under section 13A does not itself order the prisoner's release; the parole authorities retain independent discretion to determine when, within the sentence structure, release into the community is appropriate.
  • A court determining a redetermination application is not bound by section 5(2) of the Sentencing Act to divide the sentence into minimum and additional terms in the ordinary proportions, giving it flexibility in structuring the total term.
  • Genuine expressions of remorse, a credible account of rehabilitation, supportive personal circumstances, and positive prison conduct reports all featured in the court's reasoning, alongside the seriousness of the underlying offence and the applicant's prior criminal history.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), sections 5(2) and 13A

Cases cited:
- None cited in the judgment text