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Supreme Court 13 April 2007

ASP v R

[2007] NSWSC 339

Sexual offencesHomicide
SENTENCING PRESERVATION OF SAFETY OF COMMUNITY PUBLIC INTEREST APPLICATION REFUSED

Citation: ASP v R [2007] NSWSC 339
Court: Supreme Court of New South Wales
Date: 13 April 2007
Judge(s): Johnson J

Background

The applicant, referred to by initials only to protect identifying information about his family members, pleaded guilty to murder in 1988 and was sentenced to life imprisonment by Hunt J in the Supreme Court. The offences arose from the abduction, sexual assault and murder of a victim, committed while the applicant was on parole for earlier sexual assault offences. In the month before the murder, he also committed separate offences of abduction and sexual assault, for which lengthy determinate sentences were imposed.

In 2001, the applicant filed an application under the Crimes (Sentencing Procedure) Act 1999 seeking redetermination of his life sentence, asking the court to set a specified term and a non-parole period. The Crown opposed the application and sought a direction preventing any further application for ten years.

A significant complication arose during the hearing. The Crown called evidence from the applicant's daughter and former wife concerning an alleged sexual assault on the daughter during a prison visit in approximately 1993, when she was around five years old. Both witnesses ultimately recanted their prior police statements at the hearing, prompting the Crown to cross-examine each as an unfavourable witness.

  • Whether the murder constituted a "most serious case of murder" warranting a refusal to redetermine the life sentence
  • How the totality principle applied where the life sentence was imposed alongside lengthy determinate sentences for other serious offences
  • Whether evidence of the alleged 1993 prison sexual assault was admissible and relevant to the redetermination application
  • What weight should be given to the applicant's prospects of rehabilitation and the risk of reoffending
  • What period, if any, should elapse before the applicant could bring a further redetermination application

Decision

Johnson J refused the application to redetermine the life sentence. The court considered the gravity of the original offending, which involved the abduction, sexual assault and murder of the victim while the applicant was on parole for sexual assault. The offences were committed against a background of a dangerous and persistent propensity to commit crimes of abduction and sexual assault throughout the 1980s.

On the question of the 1993 prison incident, Johnson J ruled that such evidence was relevant and admissible in the context of a life sentence redetermination, given the factors prescribed under Schedule 1 of the 1999 Act, which require the court to consider matters including community safety and prospects of rehabilitation. Although both witnesses recanted their police statements at the hearing, the court addressed the evidence and its implications in the course of the judgment.

The court found that the applicant had not adequately engaged with treatment and rehabilitation opportunities, particularly the CUBIT program (an intensive sex offender treatment program). All three experts whose views were before the court agreed it was highly desirable that the applicant undertake that program. Johnson J observed that if prison authorities could facilitate access to CUBIT, this would be in the public interest, but made clear that completion of the program would not guarantee success on any future redetermination application.

The court was not satisfied, having regard to the applicant's criminal history, the nature of the offending, the post-sentence incident, the risk of reoffending, and the public interest, that a specified term and non-parole period should be set. A direction was made barring any further application for seven years, falling between the applicant's position and the Crown's submission of ten years.

Orders Made

  • The court declined to specify a term or non-parole period for the life sentence imposed on the applicant on 14 October 1988.
  • The applicant was directed not to reapply for redetermination for seven years from 13 April 2007 (that is, not before 13 April 2014).

Key Takeaways

  • Under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, a court conducting a life sentence redetermination must consider community safety, rehabilitation prospects, and the public interest, not merely the objective gravity of the original offence.
  • Evidence of criminal conduct occurring after the original sentence, including an alleged sexual assault committed in prison, is relevant and admissible on a redetermination application to the extent it bears on those statutory factors.
  • A persistent and dangerous propensity to commit serious offences, combined with inadequate engagement with rehabilitation programs, can justify refusal of a redetermination application even where many years have elapsed since the original sentence.
  • Where witnesses recant prior police statements, the court may grant leave to cross-examine them as unfavourable witnesses under s 38 of the Evidence Act 1995, and the credit contest then becomes part of the evidentiary record for the redetermination hearing.
  • The length of a preclusion period following refusal sits within the court's discretion under cl 6(1)(b) of Schedule 1; here, the court selected seven years rather than the ten years sought by the Crown, based on the particular circumstances of the applicant's situation and rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1, cl 2, cl 4(1)(c), cl 6(1)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), s 11(1)(b), (c)
- Evidence Act 1995 (NSW), s 38
- Crimes Act 1900 (NSW)
- Sentencing Act 1989 (NSW)

Key Cases
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Douar v The Queen (2005) 159 A Crim R 154
- Weininger v The Queen [2003] 212 CLR 629
- Baker v The Queen (2004) 223 CLR 513
- The Queen v Olbrich (1999) 199 CLR 270
- Ibbs v The Queen (1987) 163 CLR 447
- Briginshaw v Briginshaw (1938) 60 CLR 336
- R v Harris (2000) 50 NSWLR 409
- R v Clarke [1999] NSWSC 1225 and [2005] NSWSC 413
- R v Previtera (1997) 94 A Crim R 76
- R v Palu (2002) 134 A Crim R 174
- Collins v R [2006] NSWCCA 162