Citation: Regina v Towner [2002] NSWSC 951
Court: Supreme Court of New South Wales (Criminal Division)
Date: 18 October 2002
Judge(s): Greg James J
Background
The applicant was convicted of the murder and attempted rape of a four-year-old girl at a caravan park in May 1989. The child was a family acquaintance who had been lured into adjacent bushland, where the applicant attempted sexual intercourse, causing injury, and then killed her to silence her screaming. He was 23 years old at the time of the offences.
Following a retrial, Newman J sentenced the applicant in March 1992. He imposed a determinate sentence of 13 years and four months for the assault offence, and a mandatory life sentence for the murder under the then-applicable provision of the Crimes Act 1900, which required life imprisonment unless culpability was significantly diminished. Newman J found no such diminution.
In September 1997, the applicant lodged an application under s 13A of the Sentencing Act 1989 for re-determination of that life sentence. That provision allows prisoners serving pre-existing mandatory life sentences to apply to the Supreme Court to have a minimum and additional term substituted.
Legal Issues
- Whether the life sentence for murder should be re-determined under s 13A of the Sentencing Act 1989, and if so, on what basis
- What principles govern the fixing of a minimum term when a re-determined sentence remains one of life imprisonment
- How the gravity of the offending, the totality of criminality across both sentences, and the relevant mitigating factors bore on the appropriate minimum term
- Whether the offending was so extreme as to warrant no prospect of release, or whether a life sentence with a fixed minimum term (and hence the prospect of parole) was appropriate
Decision
Greg James J confirmed that the mandatory life sentence fell within the s 13A re-determination regime. The Court drew a clear distinction between two categories of life sentence: one that is truly irreducible (where the offender will never be released) and one that carries a minimum term, giving rise to the prospect of parole after a fixed period. The Court concluded this case fell into the second category, finding the crime, although gravely serious, did not rise to the level that would justify the applicant having no prospect of release.
The Court considered comparable sentences imposed after re-determinations under s 13A and sentences for equivalent offending under subsequent sentencing regimes. It assessed all the aggravating and mitigating factors relevant under s 21A of the Crimes (Sentencing Procedure) Act 1999, treating those principles as applicable to this specialised sentencing exercise. Mitigating factors included the absence of prior criminal history, the unplanned nature of the offending, the applicant's difficult upbringing, positive character testimonials, and academic progress in custody.
The Crown had submitted a total sentence of life or 35 to 40 years with a minimum term of 20 to 30 years. The applicant's counsel sought a total of 25 to 30 years with a minimum term of 15 to 20 years. The Court rejected the applicant's submission as below the acceptable range. Applying the totality principle, the Court held the murder sentence needed to be of sufficient length that it did not diminish the significance of the concurrent sentence for the assault offence. A re-determined life sentence with a 20-year minimum term was imposed.
Orders Made
- The life sentence for murder is re-determined
- The applicant is sentenced to life imprisonment, commencing 18 May 1989
- The sentence comprises a minimum term of 20 years, expiring 17 May 2009, together with an additional term of life imprisonment
Key Takeaways
- Under s 13A of the Sentencing Act 1989, prisoners serving mandatory pre-existing life sentences may apply to the Supreme Court for re-determination, which can result in the substitution of a minimum term while the overall sentence remains one of life imprisonment.
- A material distinction exists between a life sentence carrying no prospect of release and a life sentence with a fixed minimum term: the former is reserved for the most extreme cases where the court determines the offender should never be released.
- Where a re-determined sentence remains life imprisonment but includes a minimum term, the principles in s 21A of the Crimes (Sentencing Procedure) Act 1999, including all relevant aggravating and mitigating factors, apply to the sentencing exercise even though it is of a specialised nature.
- The totality principle requires that the re-determined murder sentence be of sufficient length and gravity that it does not effectively absorb or diminish the significance of any concurrent determinate sentence for a related offence.
- Comparative sentences from prior s 13A re-determinations and from equivalent offending sentenced under later legislative regimes are relevant considerations when fixing the minimum term on re-determination.
Legislation and Cases Referenced
Legislation
- Sentencing Act 1989 (NSW), s 13A
- Crimes Act 1900 (NSW), s 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases
- Baker [2001] NSWSC 412; Baker [2002] NSWCCA 184
- Clarke (1990) 48 A Crim R 100
- Ainsworth (1994) 76 A Crim R 127
- Previtera (1997) 94 A Crim R 76
- Kalajzich (1997) 94 A Crim R 41
- Purdy (1992) 65 A Crim R 441
- Harris [2000] NSWCCA 469
- Petrinovic [1999] NSWSC 1131
- Veen [2000] NSWSC 656
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Bugmy (1990) 169 CLR 525
- MBD (CCA, unreported, 6 March 1996)
- Fernando (CCA, unreported, 21 August 1997)
- Garforth (CCA, unreported, 23 May 1994)
- Cribb (CCA, unreported, 4 November 1994)
- Various unreported single-judge decisions (Johnstone, Carr, Hitchins, Pearce aka Luckman, Gregory, Lewthwaite, Beatty, Jessop, Stephens)