Citation: R v Alexander [2000] NSWCCA 553
Court: Court of Criminal Appeal, New South Wales
Date: 12 July 2000
Judge(s): Meagher JA, Grove J, Bergin J
Background
The appellant had been convicted of two murders committed in August 1985. He strangled his adult housemate during a dispute over rent, and then killed her three-year-old daughter when she witnessed him attempting to conceal the body. Following trial before Slattery J, he was sentenced to life imprisonment.
In 1999, the appellant applied under s 13A of the Sentencing Act to have his life sentence restructured. Kirby J granted that application and substituted a fixed minimum term of twenty-one years. Meagher JA described that outcome as one of "most extraordinary generosity."
The appellant then brought a further application to the Court of Criminal Appeal, seeking to reduce the twenty-one year minimum still further. He argued that Kirby J had erred by failing to account for remissions he claimed would have applied to his original life sentence.
Legal Issues
- Whether remissions were applicable to a life sentence imposed prior to September 1989, such that those remissions should have been factored into the minimum term set by Kirby J under s 13A of the Sentencing Act
- Whether the Court of Criminal Appeal could grant any further reduction to the restructured minimum sentence on that basis
Decision
The Court of Criminal Appeal dismissed the application unanimously. The central premise of the appellant's argument was simply incorrect: remissions did not apply to life sentences, either before or after the Sentencing Act came into force in September 1989.
Meagher JA observed that because no remissions ever attached to a life sentence, Kirby J had no occasion to deduct any such remissions when fixing the minimum term. There was no error in the original restructuring decision.
Grove J added that the appellant's misconception may have been reinforced by correspondence from the Serious Offenders Management Committee, which had made reference to remissions. He clarified that prisoners serving life sentences before 1989 who were released had been released not by operation of remissions, but pursuant to a ticket of leave arrangement made by the Governor under the legislation then in force. That was an entirely different mechanism.
Orders Made
- Appeal dismissed
Key Takeaways
- Remissions did not apply to life sentences imposed in New South Wales prior to September 1989, nor did they apply to life sentences imposed after that date when the Sentencing Act came into force.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that when restructuring a life sentence under s 13A of the Sentencing Act, no deduction for hypothetical remissions is required because no such remissions ever existed in relation to life sentences.
- The release of life sentence prisoners before 1989 was effected through the Governor's ticket of leave power under then-current legislation, not through any remissions regime.
- No error was established in Kirby J's decision to set a twenty-one year minimum term without reference to remissions.
- A misconception about applicable remissions, even one potentially encouraged by official correspondence, does not create a legal basis for reducing a sentence on appeal.
Legislation and Cases Referenced
Legislation:
- s 13A, Sentencing Act (NSW)
Cases:
No cases were cited in the judgment text or metadata.