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Court of Criminal Appeal 11 May 2006

Regina v Glen

[2006] NSWCCA 153

Also reported as 161 A Crim R 281
Homicide
CRIMINAL LAW AND PROCEDURE CROWN APPEAL INTERVENTION TO REDETERMINE APPROPRIATE RECAPITULATION OF FACTS YOUTHFUL OFFENDER OFFENCE IN WORST CASE CATEGORY

Citation: Regina v Glen [2006] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 11 May 2006
Judges: Grove J (principal judgment); Adams J and Hislop J (agreeing)

Background

In December 1986, the respondent was convicted of the murder of his ten-year-old cousin and received a mandatory life sentence under the law then in force. Under the legislative regime introduced from 1990, prisoners serving such "existing life sentences" became entitled to apply to the Supreme Court to have their sentence redetermined, substituting a minimum term and an additional term (the parole period) for the original life sentence.

The respondent had made two such applications. The first, heard by Wood CJ at CL in 1999, was dismissed. The second application, heard by Barr J in 2005, succeeded. Barr J substituted a finite head sentence with a non-parole period of 24 years, commencing from the date of the original offence in October 1985.

The Crown appealed, arguing that Barr J had failed to consider a specific provision in the governing legislation that permitted the court to decline to set a finite head sentence while still fixing a non-parole period, leaving the respondent subject to parole supervision for the rest of his natural life. That option, the Crown submitted, was the appropriate one given the circumstances.

  • Whether Barr J erred by failing to consider the legislative option of setting a non-parole period without replacing the life sentence with a finite head sentence (that is, declining to set a specific term while still establishing an earliest release date).
  • Whether the absence of any reference to that special provision in Barr J's reasons constituted a material error warranting appellate intervention.
  • If intervention was warranted, what orders the Court of Criminal Appeal should substitute.
  • Whether the 24-year non-parole period set by Barr J should be disturbed on appeal.

Decision

The Court of Criminal Appeal found that Barr J had not referred in his reasons to the legislative option of declining to set a finite head sentence while nonetheless fixing a non-parole period. The Schedule governing the redetermination process expressly contemplated that alternative. Given the gravity of the offence and the respondent's history, the Court concluded that the omission was a material error and that intervention was appropriate.

Grove J recapitulated the facts in detail. The offence was placed in the worst category of murder. The respondent had been a youthful offender, but the nature of the crime, which involved the sexual assault and killing of a child, and the history of the respondent's engagement with rehabilitation programmes, were factors weighing heavily against unsupervised liberty in the public interest.

The Court accepted that the appropriate order was to decline to substitute a finite head sentence, with the result that the respondent would remain subject to a life sentence and, if ever released, would be on parole for the remainder of his natural life. This meant that any breach of parole conditions could result in return to custody for up to the rest of his natural life.

On the question of the non-parole period, Grove J noted he would personally have set a longer period. However, applying the principle of restraint applicable to Crown appeals and resentencing, the Court concluded that the 24-year non-parole period set by Barr J fell within the range of sound discretionary judgment and should not be disturbed.

Orders Made

  • Crown appeal allowed.
  • The redetermination made by Barr J was quashed.
  • In lieu of that redetermination, the application to set a specific (finite) term for the original life sentence was declined.
  • Pursuant to the relevant provision of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, a non-parole period of 24 years was set, commencing 10 October 1985 and expiring 9 October 2009.
  • The earliest date for eligibility for release to parole was specified as 9 October 2009.

Key Takeaways

  • Under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, a court redetermining an existing life sentence has the option of declining to set a finite head sentence while still fixing a non-parole period, leaving the prisoner subject to a life sentence and lifetime parole supervision if released.
  • A failure to address or refer to that legislative option in the reasons for redetermination constitutes an error capable of attracting appellate intervention.
  • The Court of Criminal Appeal confirmed that expiry of a non-parole period does not mean automatic release. The non-parole period represents only the minimum time the sentencing court considered detention warranted for the offence.
  • Where an existing life sentence is not replaced by a finite term, a prisoner released on parole remains liable to be returned to custody for up to the rest of their natural life upon breach of parole conditions.
  • Restraint principles applicable to Crown appeals govern resentencing by the Court of Criminal Appeal on a successful redetermination appeal. A non-parole period within the range of discretionary judgment will not be disturbed even where individual judges might have imposed a longer period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1, cl 4 and cl 8
- Criminal Appeal Act 1912 (NSW)
- Sentencing (Life Sentences) Amendment Act 1989 (NSW)
- Sentencing (Life Sentences) Amendment Act 1993 (NSW)

Cases:
- Power v The Queen (1974) 131 CLR 623
- The Queen v Paivinen (1985) 158 CLR 489
- The Queen v Watt (1988) 165 CLR 474
- R v Jamieson & Ors (1992) 60 A Crim R 68
- R v Kluska NSWSC (unreported, 18 December 1998)
- R v Robinson [2002] NSWCCA 359