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Supreme Court 15 November 2002

Regina v Page

[2002] NSWSC 1067

Assault & violence
CRIMINAL PRACTICE & PROCEDURE CHANGE IN PENALTY IS THE REDETERMINATION A NEW SENTENCE?

Citation: Regina v Page [2002] NSWSC 1067
Court: Supreme Court of New South Wales (Common Law Division, Criminal List)
Date: 15 November 2002
Judge(s): Kirby J

Background

The applicant had been convicted in October 1976 of Wounding with Intent to Murder under s 27 of the Crimes Act 1900, following an unprovoked and sustained knife attack on a fellow hotel resident in Albury. The victim suffered catastrophic injuries, including a punctured lung and evisceration, and survived only because of emergency surgery. In December 1976, Maxwell J sentenced the applicant to life imprisonment, reflecting both the extreme gravity of the offence and serious concerns about the applicant's dangerous personality and propensity for violence.

More than two decades later, the applicant sought redetermination of that life sentence under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999. That scheme allows offenders serving indeterminate life sentences imposed under the old regime to apply to the Supreme Court to have a finite term of imprisonment and a non-parole period specified in substitution.

The central task for Kirby J was to assess what sentence would now be appropriate, having regard to the objective gravity of the original offence and the applicant's circumstances and conduct over the intervening 26-plus years.

  • Whether the court was obliged to apply any change in the applicable penalty when conducting a redetermination of a life sentence
  • Whether the redetermination process constitutes the imposition of a new sentence
  • What finite term and non-parole period would be appropriate given the original offence and the applicant's subsequent history, including partial rehabilitation

Decision

Kirby J found that the original offence sat within the worst category of cases for its type. The attack was entirely unprovoked, motivated by racial antipathy and a desire to cause serious harm, and was accompanied by statements demonstrating the applicant's indifference to whether the victim lived or died. The original life sentence was, in those circumstances, entirely explicable.

However, the court found that the picture presented at the time of redetermination was substantially different. The applicant had embraced the philosophy of Alcoholics Anonymous, maintained sobriety, and engaged extensively with community youth work through Police Boys' Clubs. His conduct in custody over 13 years had been non-violent, and since his release on licence in 1989 he had not committed any offences of violence, though later offences (including intimidation and unlicensed firearms possession) remained matters of concern.

Kirby J acknowledged the serious and lasting psychological harm inflicted on the victim and was mindful of the sentencing range for offences tried under s 27. The court concluded that a 20-year total term with a 15-year non-parole period, both backdated to the commencement of the original sentence in April 1976, appropriately reflected the gravity of a worst-category offence while recognising the applicant's substantial, if incomplete, transformation over more than a quarter century.

Orders Made

  • Pursuant to Schedule 1, clause 4 of the Crimes (Sentencing Procedure) Act 1999, a term of imprisonment of 20 years was specified, commencing 12 April 1976 and expiring 11 April 1996, with a non-parole period of 15 years expiring 11 April 1991.

Key Takeaways

  • The Supreme Court confirmed that a redetermination of a life sentence under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 requires the court to specify a finite term and non-parole period, with both periods capable of being backdated to the original commencement of custody.
  • Evidence of sustained rehabilitation over many years, including sobriety, non-violence, and community engagement, is a significant factor in redetermination proceedings, even where the original offence was of the gravest kind.
  • Later offending that falls short of violence may still be treated as a matter of concern at redetermination, without necessarily displacing a finding that the applicant's core dangerousness has substantially receded.
  • Where the original life sentence was imposed partly on the basis of anticipated future dangerousness, the non-materialisation of that anticipated danger over a prolonged period is a relevant consideration in fixing the redetermined term.
  • Redetermination under the schedule is not simply a mechanical exercise: the court assessed the full arc of the applicant's circumstances from the date of the offence through to the hearing, treating the gravity of the original crime as the primary anchor while weighing concrete evidence of change.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 27 (Wounding with Intent to Murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(5) and Schedule 1
- Drug Misuse and Trafficking Act 1985 (NSW)
- Prohibited Weapons Act 1989 (NSW)
- Sentencing Act 1989 (NSW)

Cases
- R v Page (1977) 2 NSWLR 173
- Veen v The Queen [No 2] (1987-88) 164 CLR 465
- R v Lanigan (CCA, unreported, 31 August 1992)
- R v Dennis (CCA, unreported, 28 October 1992)
- R v Purdey (1992) 65 A Crim R 441
- Samuels v Songaila (1977) 16 SASR 397
- R v MJR (2002) 54 NSWLR 368
- R v Cafe (Supreme Court, unreported, 6 September 1991)
- R v Malcolm (1991) 58 A Crim R 148