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Supreme Court 27 September 2001

Regina v Sharp

[2001] NSWSC 842

Sexual offencesHomicide
DETERMINATION OF LIFE SENTENCE RAPE AND MURDER BY YOUNG PERSON EFFECTS OF ALCOHOL AND DRUGS APPLICANT IN CUSTODY 13 1 2 YEARS PROTECTIVE CUSTODY

Citation: Regina v Sharp [2001] NSWSC 842
Court: Supreme Court of New South Wales
Date: 27 September 2001
Judge(s): O'Keefe J

Background

In May 1989, the applicant pleaded guilty to murder and rape committed on 24 April 1988 when he was 19 years old. The victim was a young woman he had known from school. The offences were committed in the early hours of the morning after both had attended a local RSL club, following a day in which the applicant had consumed significant quantities of alcohol and marijuana.

The applicant raped the victim in the grounds of a local school, then killed her by bashing her head on the ground and cutting her throat with a broken bottle. He stated that he killed her because she threatened to report him to police, and because he feared violent retribution from her brothers. Lee CJ sentenced him to penal servitude for life for murder, with a concurrent seven-year sentence for rape, commencing 28 April 1988.

By 2001, the applicant had been in custody for approximately 13 and a half years. He applied under section 13A of the Sentencing Act 1989 for a re-determination of his life sentence, seeking the substitution of a finite term with a fixed non-parole period.

  • Whether the life sentence should be re-determined and replaced with a fixed term of imprisonment under section 13A of the Sentencing Act 1989
  • What head sentence and non-parole period would be appropriate given the gravity of the offences, the applicant's age at the time, the role of alcohol and drugs, his conduct in custody, and the risk of reoffending
  • What additional time in custody and subsequent supervision period were required to prepare the applicant for release into the community

Decision

O'Keefe J accepted that the original life sentence was appropriate at the time it was imposed, given the extreme violence of the offences. However, on re-determination, the court was required to fix a finite term and a non-parole period that balanced the seriousness of the offending against all relevant circumstances, including the applicant's youth at the time, his progress in custody, and the prospects for his rehabilitation.

The court noted the applicant had been held in protective custody for much of his sentence, limiting his access to programs that might otherwise have facilitated earlier reclassification. Despite this, he had completed a range of educational and vocational courses, received consistently positive prison reports, and been assessed by expert evidence as presenting a low risk of reoffending. Psychiatric and psychological assessments indicated no major mental illness and good prospects for reintegration.

O'Keefe J identified a need for a further period in custody to allow correctional authorities to prepare the applicant for civilian life through appropriate programs and progressive reclassification. A five-year parole period was considered adequate to provide supervision and support during reintegration, with the applicant's strong motivation to avoid a return to prison and the availability of family support both treated as positive factors.

Orders Made

  • The applicant sentenced to imprisonment for 21 years, commencing 28 April 1988 and terminating 27 April 2009
  • A non-parole period of 16 years fixed, commencing 28 April 1988 and terminating 27 April 2004, on which date the applicant would become eligible for release on parole

Key Takeaways

  • On a re-determination application under section 13A of the Sentencing Act 1989, the Supreme Court substituted a finite 21-year term for a life sentence imposed for rape and murder, reflecting the applicant's youth at the time, the role of intoxication, and his rehabilitation in custody.
  • A low assessed risk of reoffending, consistently positive prison reports, and completion of educational and vocational programs were significant factors in the court's determination of an appropriate non-parole period.
  • Protective custody, though not of the applicant's choosing, was taken into account in evaluating the pace of his reclassification and the opportunities available to him within the prison system.
  • The court built a further period of approximately two and a half years into custody beyond the date of the decision to allow time to prepare the applicant for reintegration through appropriate programs and progressive movement through the classification system.
  • A five-year parole period was regarded as sufficient to supervise reintegration, with the applicant's awareness that breach could result in return to custody and his family's offer of support both considered relevant to the adequacy of that period.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 13A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- AB v The Queen (1999) 198 CLR 111
- R v AB (No 2) [2000] NSWCCA, 6 December 2000 (unreported)
- R v Lowe (1977) 66 Cr App R 122
- R v Davis (1978) 68 Cr App R 319
- R v Perez Vargas (1986) 8 NSWLR 559
- R v Cartwright (1989) 17 NSWLR 243
- R v Gallagher (1991) 23 NSWLR 220
- The Queen v Golding (1980) 24 SASR 161
- R v Hayes (1981) 3 A Crim R 286 (WA)