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Supreme Court 15 April 2005

Regina v Bronson Mathew Blessington

[2005] NSWSC 340

Also reported as 153 A Crim R 205
Sexual offencesAssault & violenceHomicideTheft & property
CRIMINAL LAW SENTENCING REDETERMINATION LIFE SENTENCES NON RELEASE RECOMMENDATION

Citation: Regina v Bronson Mathew Blessington [2005] NSWSC 340
Court: Supreme Court of New South Wales
Date: 15 April 2005
Judge(s): Dunford J

Background

In September 1988, the applicant, then aged 14, was one of a group of five homeless young people who abducted, sexually assaulted and murdered a woman taken from a Sydney railway station car park. He was tried with two co-offenders and convicted of murder, abduction, sexual intercourse without consent, robbery and related charges. At sentencing, Newman J imposed a life sentence and added a recommendation that none of the offenders should ever be released from imprisonment.

In November 1996, after serving the required eight years, the applicant lodged a formal application under s 13A of the Sentencing Act 1989 for redetermination of his life sentence, seeking the court to fix a minimum and additional term. Between the date of that application and the time it came to be determined, the NSW legislature enacted a series of amendments that significantly changed the legislative framework governing such applications, including provisions that gave formal legal effect to "non-release recommendations."

The applicant brought a Notice of Motion seeking separate determination of seven specific legal questions. These questions addressed whether his application had been validly made, which legislative regime governed its determination, and whether various provisions of the amended legislation were constitutionally valid.

  • Whether the applicant's 1996 application for redetermination was duly made under the legislation then in force
  • Whether the original sentencing judge's "non-release recommendation" had any legal effect on the redetermination process
  • Which version of the relevant legislation governed the making and determination of the application, given successive amendments enacted after 1996
  • Whether provisions of the amended legislation giving effect to non-release recommendations were inconsistent with Chapter III of the Commonwealth Constitution
  • Whether s 154A of the Crimes (Administration of Sentences) Act 1999, relating to non-release recommendation prisoners, was constitutionally valid

Decision

Dunford J answered the seven questions posed by the applicant's Notice of Motion in turn. The application was found to have been duly made under s 13A of the Sentencing Act 1989 as it stood in November 1996 (questions 1(a) and (b): yes). The original non-release recommendation made by Newman J at sentencing had no legal effect at the time it was made, a view confirmed by the Court of Criminal Appeal when the applicant's sentence appeal was dismissed. Counsel at that appeal had agreed the recommendation would have no legal effect on any future redetermination application.

On the question of which legislative regime governed the determination of the application, the court distinguished between the making of the application and its determination. The making of the application was not affected by subsequent legislative amendments, but the determination of the application was subject to the later statutory framework, including provisions enacted after 1996 (question 3: no as to making, yes as to determination).

On the constitutional questions, the court declined to find the provisions of the 1997 Act relating to non-release recommendation prisoners invalid, relying on Baker v The Queen. The court also declined to rule on the validity of s 154A, on the basis that the applicant was not presently affected by that provision and the question was therefore premature (questions 4 and 7: no; questions 5 and 6: did not arise).

Dunford J also raised, without deciding, the possibility that the 1997 amendments, by giving retrospective legal force to the original non-release recommendation, may have transformed it into an "order" and therefore a "sentence" capable of appeal under the Criminal Appeal Act 1912. No submissions had been made on this point, and no concluded view was expressed.

Orders Made

The court answered the seven questions in the Notice of Motion as follows:

  • Question 1(a) and (b): Yes
  • Question 2: No
  • Question 3: No as to the making of the application; Yes as to the determination of the application
  • Question 4: No
  • Question 5: Does not arise
  • Question 6: Does not arise
  • Question 7: No

Key Takeaways

  • A "non-release recommendation" made by the original sentencing court in 1988 had no legal effect at the time it was made, and the Court of Criminal Appeal had confirmed on sentence appeal that it would have no legal effect on any future redetermination application.
  • Under the successive legislative amendments to NSW sentencing law, the making of a redetermination application and the determination of that application may be governed by different legislative regimes; the timing of each step matters to which version of the law applies.
  • Successive NSW legislative amendments, including the Sentencing Legislation Further Amendment Act 1997 and the Crimes Legislation Amendment (Existing Life Sentences) Act 2001, gave formal legal effect to non-release recommendations that previously had none, creating a distinct category of "non-release recommendation prisoners" with specific procedural requirements.
  • Constitutional challenges to the provisions governing non-release recommendation prisoners were rejected, consistent with the High Court's approach in Baker v The Queen, though the validity of s 154A of the Crimes (Administration of Sentences) Act 1999 was left open as the applicant was not yet affected by it.
  • Dunford J noted, without deciding, that the retrospective legal effect given to the original non-release recommendation by the 1997 amendments may have made it susceptible to appeal as a "sentence" under the Criminal Appeal Act 1912, a point that had not been argued before the court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Sentencing Act 1989 (NSW), s 13A
- Sentencing (Life Sentences) Amendment Act 1989 (NSW)
- Sentencing (Life Sentences) Amendment Act 1993 (NSW)
- Sentencing Legislation Further Amendment Act 1997 No 6 (NSW)
- Sentencing Amendment (Transitional) Act 1997 No 8 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 154A
- Crimes (Sentencing Procedure) Act 1999 No 92 (NSW)
- Crimes Legislation Amendment (Sentencing) Act 1999 No 94 (NSW)
- Crimes Legislation Amendment (Existing Life Sentences) Act 2001 No 29 (NSW)
- Interpretation Act (NSW)
- Judiciary Act 1903 (Cth), s 78B
- Criminal Appeal Act 1912 (NSW)

Cases:
- Baker v The Queen (2004) 210 ALR 1
- Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51
- R v Jamieson, Elliott and Blessington (1992) 60 A Crim R 68
- R v Veen [2000] NSWSC 656