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Court of Criminal Appeal 14 June 2002

Regina v Baker

[2002] NSWCCA 184

Also reported as (2002) 130 A Crim R 417
Homicide
CRIMINAL LAW SENTENCING ACT 1989 S 13A(4) MEANING OF "SPECIAL REASONS" WHETHER ACT USURPS JUDICIAL POWER PRINCIPLES.

Citation: Regina v Baker [2002] NSWCCA 184
Court: New South Wales Court of Criminal Appeal
Date: 14 June 2002
Judge(s): Ipp AJA; Dunford J; Bergin J

Background

The appellant was convicted in 1974 of murder, conspiracy to murder, and two counts of malicious wounding. The sentencing judge imposed life imprisonment and made explicit remarks that the offenders should spend the rest of their lives in gaol, remarks that were accepted as a "non-release recommendation" within the meaning of s 13A of the Sentencing Act 1989.

The appellant applied under s 13A(4) to have minimum and additional terms determined in place of his life sentence. Greg James J in the Supreme Court declined to make that determination. The appellant challenged that refusal before the Court of Criminal Appeal.

Three grounds were advanced on appeal: that Greg James J wrongly found the appellant ineligible to apply; that, if a determination was made, his Honour applied the wrong test for "special reasons" under s 13A(3A); and that the 1997 amending legislation introducing s 13A(3A) was constitutionally invalid.

  • Whether Greg James J erred in finding the appellant ineligible to apply for a redetermination under s 13A(4) of the Sentencing Act 1989.
  • Whether his Honour applied the wrong test when assessing whether "special reasons" existed under s 13A(3A).
  • What the term "special reasons" means in the legislative context, and what kinds of circumstances may satisfy it.
  • Whether the Sentencing Legislation Further Amendment Act 1997 (No 6) was constitutionally invalid as vesting functions in the Supreme Court incompatible with the exercise of Commonwealth judicial power.
  • Whether the "special reasons" requirement effectively ensures the appellant and persons in his class can never be released, rendering the legislation invalid.
  • Whether legislation targeting a small, defined class of offenders is for that reason alone constitutionally invalid.

Decision

Eligibility and the "special reasons" test: The Court inferred from Greg James J's reasoning that his Honour had proceeded on the basis that special reasons did not exist to justify a determination, rather than finding the appellant ineligible to apply at all. On the proper construction of s 13A(3A), "special reasons" sets a threshold above ordinary sentencing considerations. The term connotes reasons that are "out of the ordinary, unusual and not to be expected."

Scope of "special reasons": The Court declined to exhaustively define the term but identified examples. These include meritorious service to prison authorities or the community (such as providing information leading to the apprehension of criminals), affording psychological comfort and assistance to other prisoners to an unusual degree, and general assistance to prison authorities to an unusual degree. A combination of reasons, even if none is inherently "special" in isolation, may together satisfy the threshold. Rehabilitation alone would not ordinarily suffice, but a particularly marked rehabilitation coupled with other factors may do so.

The "powerful" reasons formulation: Greg James J had described the required special reasons as "powerful." The Court held that this was not an error. His Honour used "powerful" as synonymous with "special," meaning reasons sufficiently persuasive to warrant making the determination. No misdirection was established.

Constitutional validity: The Court dismissed all constitutional challenges. The legislation does not make it practically impossible to establish "special reasons," so it cannot be characterised as a legislative device to ensure permanent imprisonment. The court's function under s 13A(4) read with s 13A(3A) is a traditional judicial exercise of conditioning relief upon defined criteria, not a usurpation of judicial power. The fact that the legislation applies to a small class of persons does not render it invalid, nor does Parliament's identification of that class by criteria that may be characterised as arbitrary, provided there is a real connection between those criteria and the gravity of the relevant offences. The challenges drawing on Kable v DPP were distinguished.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 13A(3A) of the Sentencing Act 1989, a person subject to a non-release recommendation must demonstrate "special reasons" before a minimum and additional term can be determined in place of a life sentence; this means reasons that are out of the ordinary, unusual, and not to be expected.
  • The Court of Criminal Appeal confirmed that "special reasons" is a deliberately elevated threshold, but one that remains practically achievable. Examples include exceptional service to prison authorities, providing intelligence leading to criminal apprehensions, and extraordinary assistance to other prisoners.
  • Rehabilitation alone does not ordinarily constitute "special reasons," though a particularly pronounced rehabilitation combined with other factors may reach the threshold.
  • In dismissing the constitutional challenge, the Court held that legislation requiring courts to assess defined criteria before affording relief to a particular class of offenders does not usurp or compromise judicial power, and that the small size of the affected class provides no independent basis for invalidity.
  • Inconsistency in the making of non-release recommendations across cases does not invalidate the legislative scheme; such recommendations remain expressions of judicial assessment of the particular circumstances of each offence.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 13A
- Sentencing Legislation Further Amendment Act 1997 (NSW) No 6
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Kalajzich (1997) 94 A Crim R 41
- United Mexican States v Cabal (2001) 75 ALJR 1663
- O'Hare v DPP [2000] NSWSC 430
- B v Gould and DPP (1993) 67 A Crim R 297
- R v Simpson [2001] NSWCCA 534
- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
- R v Baker (NSWCCA, unreported, 23 May 1994)
- Nicholas v The Queen (1998) 193 CLR 173
- Chester v R (1988) 165 CLR 611
- R v Moffatt [1998] 2 VR 229
- Polyukhovich v The Commonwealth (1991) 172 CLR 501
- Leeth v Commonwealth (1992) 174 CLR 455
- Liyanage v The Queen [1967] 1 AC 259