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Supreme Court 31 March 2000

Regina -v- Levy

[2000] NSWSC 355

Homicide
LIFE SENTENCE SENTENCING ACT 1989 S.13A

Citation: Regina v Levy [2000] NSWSC 355
Court: Supreme Court of New South Wales
Date: 31 March 2000
Judge(s): Dowd J

Background

The applicant was convicted of murder following a jury trial in August 1970 and received the then-mandatory sentence of penal servitude for life. The murder occurred on the night of 18-19 September 1969 at Kyeemagh, when the applicant lured an associate to a construction site near Botany Bay under the pretence of a criminal enterprise and killed him with a mattock and stillson wrench. The victim was buried at the scene, and the applicant subsequently destroyed evidence and the victim's belongings.

Appeals against conviction were dismissed by the Court of Criminal Appeal, the High Court refused special leave, and the Privy Council rejected a petition for leave to appeal. The applicant had therefore been serving a life sentence continuously since his arrest on 6 January 1970, a period of approximately 30 years at the time of this application.

The application was made under s 13A of the Sentencing Act 1989, which permits a person serving an existing life sentence to apply to the Supreme Court for the determination of a minimum term and an additional term, provided at least eight years of the sentence have been served.

  • Whether the applicant met the threshold requirements under s 13A of the Sentencing Act 1989 to have minimum and additional terms set for his existing life sentence.
  • What minimum term was appropriate, having regard to the objective seriousness of the offence, the applicant's lengthy criminal history, and the totality principle.
  • What additional term was appropriate, having regard to the applicant's age, rehabilitation, and prospects upon release.

Decision

Dowd J found that the applicant satisfied the procedural requirements of s 13A, having served well in excess of the eight-year threshold. The court then turned to the substance of the redetermination, examining the objective seriousness of the offence in considerable detail. The killing was premeditated, brutal, and accompanied by deliberate concealment. The applicant had a long criminal history extending beyond this offence.

Despite the gravity of the offence and the criminal history, the court accepted that significant rehabilitation had occurred. The applicant had undertaken substantial work and personal development during his lengthy incarceration. Dowd J weighed the totality of the applicant's sentence against his age (he was in his mid-sixties at the time of the hearing) and concluded that an artificially extended additional term would not serve the purposes of sentencing.

The court applied the totality principle and fixed a minimum term running from the date of arrest. An additional term of five years was imposed, reflecting the court's view that the applicant had demonstrated he was capable of reform and that the period of parole supervision should be meaningful but not excessive given his age and the time already served.

Orders Made

  • Minimum term of imprisonment of 30 years, 10 months and 20 days, commencing 6 January 1970 and expiring 25 November 2000, with the applicant eligible for release to parole from 26 November 2000.
  • Additional term of 5 years, commencing 26 November 2000 and expiring 25 November 2005.

Key Takeaways

  • Under s 13A of the Sentencing Act 1989, a person serving a pre-existing life sentence may apply to the Supreme Court for the determination of minimum and additional terms once at least eight years of the sentence have been served.
  • The objective seriousness of the original offence remains a central consideration in any redetermination, but it is weighed alongside factors such as rehabilitation, age, and the totality of time already served.
  • A finding of substantial rehabilitation during a lengthy period of incarceration can support the imposition of a shorter additional term, even where the underlying offence was particularly serious and the offender had an extensive prior criminal history.
  • In applying the totality principle, the court assessed whether the length of the additional term would extend the overall sentence beyond what was genuinely warranted, particularly where the applicant's advanced age would make a lengthy parole tail effectively punitive rather than supervisory.
  • The court declined to treat a prior judicial characterisation of the applicant as "incorrigible" as determinative, finding that the evidence of change over the intervening decades warranted a different assessment at the time of redetermination.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 13A
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Application of Gary John Purdy (1993) 65 A Crim R 441
- Application of Michael Bradley (unreported, 1 March 1996)
- R v Malcolm (1991) 58 A Crim R 148
- R v Rees (unreported, 22 September 1995)
- R v Chester (unreported, 21 December 1992)