Citation: R v Mark Terrence Woods [2005] NSWSC 1176
Court: Supreme Court of New South Wales
Date: 25 November 2005
Judge(s): Buddin J
Background
The applicant had been in continuous custody since 4 December 1986, a period of almost 19 years at the time of judgment. In May 1987, Yeldham J sentenced him to penal servitude for life on two counts: maliciously setting fire to a motor vehicle while knowing the victim was inside, and feloniously wounding that victim with intent to murder. Three related concurrent sentences (for armed robbery and two counts of sexual intercourse without consent) had all expired by the time of this application.
The applicant applied under s 13A of the Sentencing Act 1989 for the court to replace his two indeterminate life sentences with a minimum term and an additional term. Such an application allows a court to set a fixed period that must be served before parole becomes possible, rather than leaving the sentence open-ended. The application had been filed in June 1995 and was finally determined in November 2005 after numerous hearing dates.
The Crown and the applicant were in broad agreement that the court should impose a determinate minimum term alongside an additional term of natural life, though they differed on the length of the minimum term.
Legal Issues
- Which version of s 13A of the Sentencing Act 1989 governed the application, given the legislative amendments in 1997 and the repeal of that Act in 2000
- Whether the applicant's circumstances and conduct in custody, including his completion of the CUBIT program (a custodial sex offender treatment program), justified granting the application
- What length of minimum term was appropriate, balancing the purposes of criminal sentencing, the principle of totality, and the views expressed by the original sentencing judge
- Whether the additional term should run for the remainder of the applicant's natural life
Decision
Buddin J resolved the threshold legislative question by accepting that s 13A in its amended form (as it stood following the 1997 amendments) governed the application. His Honour followed the approach taken by Sully J in R v Veen and confirmed by the Court of Criminal Appeal in R v Baker, holding that the 1997 amendments applied retrospectively to applications made before 8 May 1997. Because the present application was made on 19 June 1995, this conclusion was not in dispute between the parties.
On the substantive question, Buddin J noted that circumstances had changed since the original sentencing. Relevant considerations included the applicant's conduct while in custody and his completion of the CUBIT program. His Honour observed that the court was in a more advantageous position than the original sentencing judge, and that it now had the option, unavailable in 1987, of imposing a determinate sentence with an additional term of natural life.
The applicant's counsel conceded that an additional term for the balance of natural life was appropriate, submitting only that a minimum term of 20 years was warranted. The Crown's position also pointed to an additional term of natural life. Buddin J accepted that outcome, ultimately fixing a minimum term of 20 years and six months on the more serious count, with an additional term continuing for the balance of the applicant's natural life.
Buddin J emphasised that the question of whether the applicant would actually be released to parole at the expiry of the minimum term would ultimately be a matter for the Parole Board, not the court on this application.
Orders Made
- The application was granted.
- For the offence of maliciously setting fire to a motor vehicle while knowing the victim was inside: a sentence of 16 years imprisonment, dating from 4 December 1986 and expiring 3 December 2004. No non-parole period was fixed for this offence.
- For the offence of feloniously wounding with intent to murder: a minimum term of 20 years and six months imprisonment, commencing 4 December 1986 and expiring 3 June 2007, with an additional term commencing 4 December 1986 and continuing for the balance of the applicant's natural life.
Key Takeaways
- Under the transitional legislative scheme, s 13A of the Sentencing Act 1989 in its amended form (post-1997) applies to life sentence redetermination applications made before 8 May 1997, following the Court of Criminal Appeal's approach in R v Baker.
- A court redetermining a life sentence under s 13A may impose a determinate minimum term combined with an additional term for the remainder of the offender's natural life, an option that was not available to the original sentencing court in 1987.
- The redetermined sentences must commence from the date on which the original sentences were imposed, and where multiple redetermined sentences are involved, they run concurrently.
- Completion of custodial treatment programs such as CUBIT is a circumstance relevant to the redetermination, alongside broader sentencing purposes including totality and the views of the original sentencing judge.
- Granting a redetermination application and fixing a minimum term does not guarantee release: the Parole Board retains the decision whether to release an applicant once the minimum term expires.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 27, 61B, 61D, 97, 196
- Sentencing Act 1989 (NSW), s 13A (including amended form)
- Sentencing Amendment (Transitional) Act 1997 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 104, Schedule 2
Cases:
- Cameron v The Queen (2002) 209 CLR 339
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1987-8) 164 CLR 465
- R v Baker [2001] NSWSC 412; (2002) 130 A Crim R 417
- R v Bowtell [2000] NSWSC 803
- R v Burchell (1987) 34 A Crim R 148
- R v Crump (NSWCCA, unreported, 30 May 1994)
- R v Durocher-Yvon (2003) 58 NSWLR 581
- R v Page [2002] NSWSC 1067
- R v Purdy (1992) 65 A Crim R 441
- R v Salameh [1999] NSWCCA 300
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Totten [2003] NSWCCA 207
- R v Towner [2002] NSWSC 951
- R v Veen [2000] NSWSC 656
- R v Websdale [2000] NSWSC 636
- R v White [2000] NSWSC 555
- R v Wright [2000] NSWSC 568