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Supreme Court 2 March 2007

Pollock v R

[2007] NSWSC 148

Homicide
CRIMINAL LAW SENTENCING OBJECTIVE SERIOUSNESS OF OFFENCE TOTALITY LIFE SENTENCE REDETERMINED

Citation: Pollock v R [2007] NSWSC 148
Court: Supreme Court of New South Wales
Date: 2 March 2007
Judge(s): Johnson J

Background

The applicant was convicted by jury on 20 November 1990 of the murder of Terrence Damien Ryan at Wollongong on 9 May 1988. Following conviction, Wood J sentenced the applicant to life imprisonment under s 19 of the Crimes Act 1900, the sentence to date from 20 November 1990.

Two appeals against conviction were subsequently dismissed. The first, in April 1992, was dismissed by the Court of Criminal Appeal. A second referral was made in 2004 on the basis of doubt as to guilt, but the Court of Criminal Appeal again dismissed the appeal in September 2005.

In March 1997, the applicant applied for redetermination of his life sentence under s 13A of the Sentencing Act 1989. He did not initially proceed with that application. The matter was later governed by Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, and the application was ultimately heard by Johnson J in November 2006.

  • Whether the life sentence should be redetermined by fixing a specified term and non-parole period under cl 4(1)(a) of Schedule 1 of the Crimes (Sentencing Procedure) Act 1999
  • What weight to give to the objective seriousness of the murder and the applicant's prior criminal history in setting an appropriate term
  • How to apply the totality principle where the applicant had also served concurrent or overlapping sentences for serious dishonesty offences imposed in the District Court in 1989 and 1990
  • What non-parole period represented the minimum term that justice required the applicant to serve, having regard to all the circumstances

Decision

Johnson J determined that it was appropriate to redetermine the life sentence by fixing a specified term together with a non-parole period, rather than declining to set either. The Court applied the framework in Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, which required consideration of the circumstances of the offence, the applicant's full conviction history, community safety, the applicant's age, and any relevant reports and recommendations.

On the totality question, Johnson J concluded that the period of incarceration up to July 1992 should be treated as referable essentially to the District Court sentences for serious dishonesty offences. The Court reasoned that treating the entire early period as time served under the murder sentence would effectively allow those significant District Court sentences to disappear, which would fail to reflect the gravity of that offending given the applicant's extensive history of dishonesty.

In setting the non-parole period, the Court noted that expiry of that period would make the applicant merely eligible for parole, not entitled to release. Release would remain a matter for the State Parole Authority, which would need to be satisfied on the balance of probabilities that release was in the public interest. The Court identified the non-parole period as the minimum term that justice required the applicant to serve, consistent with the High Court's formulation in Power v The Queen and The Queen v Bugmy.

Orders Made

  • Specified term of 24 years' imprisonment fixed, commencing 20 November 1990 and expiring 19 November 2014
  • Non-parole period of 17 years and nine months fixed, commencing 20 November 1990 and expiring 19 August 2008
  • 19 August 2008 specified as the earliest date upon which the applicant would be eligible for release on parole

Key Takeaways

  • Under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, a court redetermining a life sentence must consider all circumstances of the offence, the offender's full conviction history, community safety, the offender's age, and any relevant reports, while giving substantial weight to the original sentencing court's remarks.
  • Applying the totality principle in a redetermination, the Supreme Court treated early custodial time as referable to concurrent District Court sentences rather than the murder sentence, to avoid those sentences becoming effectively meaningless.
  • Expiry of a non-parole period set on redetermination confers eligibility for parole only; actual release remains subject to a separate assessment by the State Parole Authority under s 135(1) of the Crimes (Administration of Sentences) Act 1999.
  • The non-parole period in a redetermination represents the minimum term that justice requires the offender to serve, as stated in Power v The Queen (1974) 131 CLR 623 and The Queen v Bugmy (1990) 169 CLR 525.
  • A court conducting a redetermination has the benefit of hindsight, including extensive post-sentence reports and professional observations of the offender accumulated over the years since the original sentence was imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 19 and s 474D
- Sentencing Act 1989 (NSW), s 13A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(5), Schedule 1 (cls 2, 3, 4, 5, 7), Schedule 2 (cl 21)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135(1)
- Criminal Appeal Act 1912 (NSW)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Cases
- R v Pollock (Court of Criminal Appeal, unreported, 13 April 1992)
- R v Pollock [2005] NSWCCA 316
- Power v The Queen (1974) 131 CLR 623
- The Queen v Bugmy (1990) 169 CLR 525
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465
- Mill v The Queen (1988) 166 CLR 59
- R v Simpson (2001) 53 NSWLR 704
- R v Previtera (1997) 94 A Crim R 76
- R v Slater (2001) 121 A Crim R 369
- R v Malcolm (1991) 58 A Crim R 148
- Apps v R [2006] NSWCCA 290
- R v Potter [2006] NSWSC 1174
- R v MAK and MSK [2006] NSWCCA 381
- R v Hillsley (2006) 164 A Crim R 252
- R v FD and JD (2006) 160 A Crim R 392
- R v Salameh [1999] NSWCCA 300
- R v Towner [2002] NSWSC 951
- R v Page [2002] NSWSC 1067