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Court of Criminal Appeal 8 August 2008

Norrie v R

[2008] NSWCCA 185

Homicide
SENTENCING IMPOSED IN 1987 FOR MURDER APPLICATION REFUSED YEAR PRECLUSION PERIOD PROTECTION OF THE COMMUNITY PUBLIC INTEREST

Citation: Norrie v R [2008] NSWCCA 185
Court: New South Wales Court of Criminal Appeal
Date: 8 August 2008
Judge(s): Campbell JA, James J, Johnson J

Background

In 1987, the applicant was sentenced to life imprisonment for murder. In 2006, he applied to the Supreme Court under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 for redetermination of that life sentence, seeking the fixing of a non-parole period.

Bell J (as her Honour then was) refused the application and declined to set a non-parole period. Her Honour also directed that the applicant could not reapply for redetermination for a period of 20 years, relying on clause 6 of Schedule 1. The applicant was a self-confessed thrill killer who had acted on homicidal urges on more than one occasion, and psychiatric evidence about his future risk remained very guarded.

The applicant sought leave to appeal to the Court of Criminal Appeal solely in respect of the 20-year preclusion period. He did not challenge the refusal to set a non-parole period.

  • Whether a direction under clause 6(1) of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 is subject to appeal to the Court of Criminal Appeal, and on what standard.
  • Whether Bell J erred (in the House v The King sense) in fixing the preclusion period at 20 years rather than some lesser period.
  • Whether the factors considered by Bell J, including community protection, the public interest, the heinous nature of the offence, and the applicant's sentences for other crimes, were relevant and properly applied.
  • Whether additional evidence filed by the applicant on appeal could be admitted, and if so, whether it would have led to a different outcome.

Decision

The Court confirmed that an appeal against a clause 6(1) preclusion direction is treated as an appeal against sentence, governed by the Criminal Appeal Act 1912. Before intervening, the Court of Criminal Appeal must identify error of the kind described in House v The King (1936) 55 CLR 499, whether an error of principle, a misapplication of relevant considerations, a mistake of fact, or a result that is unreasonable or plainly unjust.

Johnson J (with whom Campbell JA and James J agreed) found no patent or latent error in Bell J's exercise of discretion. Protection of the community was the predominant consideration, and the evidence supported a cautious approach. The applicant was a self-confessed thrill killer, the psychiatric evidence remained guarded, he did not give evidence at the redetermination hearing, and there was no objective corroboration for his claim that he would not offend again beyond the mere passage of time.

The Court also held that the applicant's concurrent sentences for other serious offences, including murder and attempted murder, were a relevant factor. Because the applicant had been serving sentences for other crimes from 1986 and would continue to do so until 2016, it was appropriate to consider what period of imprisonment was solely referable to the subject murder when assessing the public interest in fixing a preclusion period.

Even if error had been demonstrated (permitting the additional evidence to be considered), Johnson J stated he would not have formed the opinion under s 6(3) of the Criminal Appeal Act 1912 that a lesser preclusion period was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A direction under clause 6(1) of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 precluding a life sentence prisoner from reapplying for redetermination is treated as a sentence for appeal purposes, and the Court of Criminal Appeal may only intervene if error in the House v The King sense is established.
  • Under clause 6(4) of Schedule 1, a preclusion period exceeding three years is only available where the offender was sentenced for murder and the case is a most serious one in which a direction is in the public interest.
  • Protection of the community is the predominant consideration in fixing the length of a preclusion period, and a sentencing court is entitled to take a cautious approach where psychiatric evidence remains guarded and there is no objective support for the offender's claims of rehabilitation.
  • Where a life sentence prisoner is also serving sentences for other serious offences, it is relevant to assess what period of imprisonment is solely referable to the subject murder when determining the appropriate preclusion period.
  • No error was established in Bell J's decision to impose the 20-year preclusion period, and the Court of Criminal Appeal confirmed the period was neither unreasonable nor plainly unjust on the facts of this case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1 (clauses 3, 6, 7, 8)
- Criminal Appeal Act 1912 (NSW), ss 6(3)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases
- House v The King (1936) 55 CLR 499
- Markarian v The Queen (2005) 228 CLR 357
- Lowndes v The Queen (1999) 195 CLR 665
- R v Simpson (2001) 53 NSWLR 704
- R v Merritt (2004) 59 NSWLR 557
- R v Khouzame [2000] NSWCCA 505
- Baxter v R (2007) 173 A Crim R 284
- R v Norrie [2006] NSWSC 830 (decision under appeal)
- R v Norrie [2001] VSC 478; [2002] VSCA 232
- R v Deng (2007) 176 A Crim R 1
- R v Qutami (2001) 127 A Crim R 369
- R v Kalajzich (1997) 94 A Crim R 41
- R v ASP [2007] NSWSC 339