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Supreme Court 25 May 2001

REGINA v. BAKER

[2001] NSWSC 412

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW LIFE SENTENCES APPLICATION FOR RE DETERMINATION CIRCUMSTANCES OF ALL OFFENCES VIEWS OF TRIAL JUDGE

Citation: Regina v Baker [2001] NSWSC 412
Court: Supreme Court of New South Wales (Criminal Division)
Date: 25 May 2001
Judge(s): Greg James J

Background

The applicant, a prisoner then aged 53, had been serving life sentences imposed in 1974 following his conviction for murder and conspiracy to murder, along with related offences of malicious wounding and shooting at police officers. The offences arose from events in late 1973 near Narrabri and Collarenebri in regional New South Wales. By the time of the application, the applicant had been in continuous custody for nearly 27 years.

The applicant sought orders under s 13A of the Sentencing Act 1989 to have minimum and additional terms fixed for his life sentences, which would open the possibility of eventual release. He relied heavily on evidence of exemplary conduct and strong rehabilitation prospects during his time in custody.

The applicant also pointed to the earlier re-determination of the life sentence of his co-offender, Crump, under the same provision, and argued he was entitled to parity of treatment. The Crown opposed the application, submitting the applicant did not meet the statutory threshold requiring "special reasons" for re-determination, and further sought a direction that the applicant never re-apply.

  • Whether the applicant met the "special reasons" threshold under s 13A of the Sentencing Act 1989 to be eligible for re-determination of his life sentences
  • What effect the reduction of the maximum penalty for conspiracy to murder from life imprisonment to 25 years had on the re-determination exercise
  • Whether the applicant was entitled to parity with his co-offender Crump, whose sentence had been re-determined prior to relevant legislative amendments
  • Whether the court had power to, and should, direct that the applicant never re-apply under the section

Decision

Greg James J found that the applicant was not eligible for re-determination, having failed to satisfy the statutory "special reasons" requirement under s 13A as it applied to an application commenced at that time. His Honour acknowledged the appalling nature of the original offences and their surrounding circumstances, and held that those circumstances weighed heavily against a finding of special reasons, even when all asserted reasons were considered individually and collectively.

On the rehabilitation evidence, His Honour accepted that the applicant had demonstrated marked rehabilitation and that the risk of future dangerousness or recidivism was very low with appropriate management. However, rehabilitation alone did not satisfy the special reasons criteria. When assessed against the statutory requirements and the gravity of the crimes, the threshold was not met.

On the parity argument, the court distinguished the applicant's position from that of his co-offender Crump. Crump's sentence had been re-determined under the provision before the relevant legislative amendments took effect, and the facts of the two cases differed. No requirement of parity arose on those grounds.

Regarding the conspiracy to murder count, the court noted that the current maximum for that offence was 25 years and that the applicant had already served a period exceeding that maximum. The Crown conceded it would not be appropriate to direct a never-re-apply order in respect of that count. Because the murder sentence could not be re-determined, however, re-determination of the conspiracy count alone served no practical purpose.

Orders Made

  • The applicant was declared not eligible to make the application for re-determination.
  • No direction was made under s 13A(8)(a) or (b) that the applicant never re-apply.

Key Takeaways

  • Evidence of marked rehabilitation and low recidivism risk, while relevant, does not by itself satisfy the "special reasons" threshold required for re-determination of a life sentence under s 13A of the Sentencing Act 1989 as it applied to this application.
  • Where a co-offender's sentence was re-determined under an earlier version of the relevant statutory provision, and the factual circumstances of the two offenders differ, no parity entitlement automatically arises.
  • The fact that a prisoner has already served a period exceeding the current statutory maximum for one of the offences carrying a life sentence is a potentially significant factor in re-determination, but does not override the need to satisfy all statutory criteria.
  • A declaration of ineligibility under s 13A is distinct from a refusal to determine: the court found that a determination could only be declined under s 13A(4) where an application had been duly made, and the appropriate course here was a declaration of ineligibility.
  • The Supreme Court declined to foreclose future re-application entirely, noting it could not anticipate what special reasons might arise later and that the applicant's rehabilitation militated against making a never-re-apply direction.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 13A
- Sentencing (Life Sentences) Amendment Act 1993 (NSW)
- Sentencing Legislation Further Amendment Act 1997 (NSW)
- Crimes Act 1900 (NSW), s 441A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Previtera (1997) 94 A Crim R 76
- Harris [2000] NSWCCA 469
- Petrinovic [1999] NSWSC 1131
- Cribb (CCA, unreported, 4 November 1994)
- Purdey (1992) 65 A Crim R 441
- Johnstone (Badgery-Parker J, unreported, 20 December 1992)
- Williscroft [1975] VR 292
- Baker (CCA, unreported, 23 May 1994)
- Kalajzich (1997) 94 A Crim R 41
- Crump (CCA, unreported, 30 May 1994)
- Pearce (1998) 194 CLR 610
- Lowe (1984) 154 CLR 606
- Garforth (CCA, unreported, 23 May 1994)