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Supreme Court 29 November 2001

Regina v Hall

[2001] NSWSC 1125

Homicide
CRIMINAL LAW SENTENCING REDETERMINATION OF LIFE SENTENCE

Citation: Regina v Hall [2001] NSWSC 1125
Court: Supreme Court of New South Wales
Date: 29 November 2001
Judge(s): McClellan J

Background

The applicant, Maddison Hall, was convicted by a jury in 1987 of murdering a hitchhiker at Gol Gol, New South Wales. The victim had been picked up by the applicant and an associate as part of a drug-procurement venture, and was shot twice after the applicant became convinced he was using them for a free ride rather than providing the promised drug contacts. Enderby J imposed penal servitude for life, finding no mitigating circumstances, with the sentence commencing 1 August 1989.

The applicant sought a redetermination of that life sentence under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999. Since her original sentencing, the applicant had identified as female, changed her name, and undergone treatment towards gender reassignment.

The application had previously been adjourned by Barr J pending resolution of a sexual assault charge involving another inmate. Those charges were ultimately not proceeded with after the complainant left the jurisdiction and no evidence was available.

  • Whether the life sentence originally imposed should be redetermined and replaced with a specified term under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the degree of criminality involved in the murder fell into the category of "the highest order," which would weigh against substituting a finite term
  • What weight should be given to the applicant's rehabilitation, remorse, and ongoing personal circumstances, including her gender transition

Decision

McClellan J found that while the murder was cold-blooded and chilling, involving two deliberate shots fired at an apparently innocent victim, the criminality involved did not reach the highest order. His Honour applied the framework discussed in R v Alexander (1999) 107 A Crim R 449 in assessing where the offence sat on the spectrum of criminal culpability.

The court accepted that the applicant had made genuine progress towards rehabilitation, had developed real remorse and insight into her offending, and that her prospects would be assisted by the certainty of a specified sentence. McClellan J also acknowledged that the applicant would face considerable ongoing challenges, both within the prison system and upon release, arising from her gender transition, and that she would require significant supervision and support.

Having regard to all of the evidence, the applicant's age at the time of the offence, her other offending history, and the statutory matters in clause 7 of Schedule 1, including community safety, the court determined it was appropriate to substitute a finite term. The sentence was set at 22 years' imprisonment commencing 1 August 1989, with a non-parole period of 16 years and 6 months.

Orders Made

  • The applicant resentenced to 22 years' imprisonment commencing 1 August 1989 and expiring 31 July 2011
  • Non-parole period set at 16 years and 6 months, with a first eligible release date of 28 February 2006

Key Takeaways

  • A life sentence for murder is not automatically irreducible on redetermination; where the criminality involved, though serious, does not reach the highest order, a specified term may be appropriate under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999
  • McClellan J applied R v Alexander to distinguish between murders of high criminality and those of the highest criminality, with the latter category more likely to resist substitution of a finite term
  • Rehabilitation, genuine remorse, and insight into offending are relevant considerations in redetermination proceedings, and the court found these factors weighed in favour of setting a specified term
  • The operative commencement date for a redetermined sentence is the date from which the original sentencing judge determined the offender was held in custody for the murder, not simply the date of arrest
  • Unresolved or "no-billed" charges arising during the period of imprisonment did not form part of the redetermination assessment, and McClellan J explicitly set them aside as irrelevant to the decision

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1, clauses 3, 5(1) and 7

Cases:
- R v Alexander (1999) 107 A Crim R 449