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Court of Criminal Appeal 13 December 2000

Regina v Maiden

[2000] NSWCCA 519

Homicide

Citation: Regina v Maiden [2000] NSWCCA 519
Court: NSW Court of Criminal Appeal
Date: 13 December 2000
Judge(s): Sully J, Whealy J, Howie J

Background

The applicant was convicted of murder in November 1987 and sentenced to penal servitude for life by Hunt J in September 1988. The murder was committed while the applicant and a co-offender were escaped prisoners, during what the court described as a spree of criminal activity. In April 1999, Dunford J re-determined the life sentence under section 13A of the Sentencing Act 1989, replacing it with a minimum term of 18.5 years and an additional term of six years, both commencing from the date of the original sentence in September 1988.

Separately, in March 1992, Gallen DCJ in the District Court sentenced the applicant for a range of offences committed between his escape and his re-arrest, including escape from lawful custody, multiple break-enter-and-steal offences, and motor vehicle-related offences. Those sentences incorporated backdating and concurrency arrangements that produced a degree of leniency in the applicant's favour.

The applicant sought leave to appeal the severity of both the re-determined murder sentence and the District Court sentences. The Court of Criminal Appeal dealt with both applications together.

  • Whether Dunford J erred in re-determining the life sentence for murder, including the length of the minimum and additional terms and the commencement date
  • Whether Gallen DCJ erred in the sentencing process for the non-murder offences, including the structure of concurrent and cumulative sentences and the absence of additional terms
  • Whether the sentencing courts had adequately taken into account the applicant's time spent in protective custody as a factor going to the conditions of imprisonment

Decision

Whealy J (with whom Sully J and Howie J agreed) found no merit in either appeal. In relation to the District Court sentences, the Court concluded that Gallen DCJ had not erred. The sentencing structure included an inbuilt leniency in that most offences were backdated to January 1988, allowing service of those sentences concurrently with the balance of an earlier term. The overall effect was a benefit of just over two years in the applicant's favour.

On the re-determined murder sentence, the Court found that Dunford J had taken a proper approach. The re-determined minimum term of 18.5 years, commencing from September 1988, was not excessive given the gravity of the offence and the applicant's criminal history.

The applicant also argued that insufficient weight had been given to the hardship of spending extended periods in protective custody. Whealy J rejected this ground. A fair reading of Dunford J's judgment showed that his Honour had specifically referred to the applicant's protective custody history and the prospect of the applicant transferring out of protective custody arrangements at Junee to a Special Care programme at Long Bay.

Orders Made

  • Leave to appeal against the sentences imposed by Gallen DCJ: refused
  • Leave to appeal against the sentence imposed by Dunford J on 8 April 1999: granted, but appeal dismissed

Key Takeaways

  • In dismissing both appeals, the Court of Criminal Appeal confirmed that neither the District Court sentencing by Gallen DCJ nor the re-determination of a life sentence by Dunford J disclosed legal error.
  • Backdating sentences to the date of arrest, where that date preceded expiry of a pre-existing sentence, can constitute a legitimate leniency mechanism, but the sentencing court must apply it consistently and transparently.
  • Under section 13A of the Sentencing Act 1989, a re-determined sentence for a historical life sentence for murder may properly commence from the date of the original sentence, not from the date of re-determination.
  • A sentencing court is not required to give separate express mathematical weight to time spent in protective custody, provided the judgment demonstrates genuine engagement with that factor as part of the overall assessment of the conditions of imprisonment.
  • No error arises from a sentencing judge taking into account a prisoner's reasonable prospects of moving to less restrictive custody, even where the outcome of that process remained uncertain at the time of sentencing.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 13A
- Prisons Act 1952 (NSW), s 34
- Crimes Act 1914 (Cth)
- Crimes Act (NSW)

Cases:
- Regina v Gary John Stephens (NSWCCA, unreported, 2 November 1993)
- Regina v Johns (1978) 2 NSWLR 259
- Regina v Mai (1992) 26 NSWLR 371
- Regina v Arnold (1993) 30 NSWLR 73
- AB v The Queen (1999) 198 CLR 111
- R v Boreland (CCA, unreported, 2 August 1994)
- Regina v Salameh (1999) NSWCCA 300
- R v Pearce (1998) 194 CLR 610
- Mill v The Queen (1988) 166 CLR 59
- R v Purdey (1992) 65 A Crim R 441, affirmed (1993) 31 NSWLR 668
- R v Haggart (unreported, Dunford J, 19 November 1993)