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Court of Criminal Appeal 13 February 2009

R v Main

[2009] NSWCCA 14

Homicide
CRIMINAL LAW AND PROCEDURE TOTAL OF THREE IMPOSITIONS LIFE SENTENCE LEFT IN PLACE BUT NON PAROLE PERIOD OF 25 YEARS ORDERED CROWN CONTENTION THAT LONGER NON PAROLE PERIOD SHOULD BE SET

Citation: R v Main [2009] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 13 February 2009
Judge(s): McClellan CJ at CL, Grove J, Howie J

Background

The respondent was serving multiple life sentences imposed before the commencement of the Sentencing Act 1989. Two of those sentences arose from a murder and an armed robbery committed at Whale Beach in June 1983. A third life sentence was imposed for the murder of a fellow inmate at a Sydney remand centre in November 1983, while the respondent was already in custody awaiting trial for the Whale Beach offences.

Under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, prisoners serving pre-1989 life sentences may apply to have those sentences redetermined and replaced with fixed terms. The respondent had made two earlier unsuccessful applications before the same judge, Adams J. A third application was heard in March 2008.

On 4 July 2008, Adams J resentenced the respondent on the Whale Beach counts and, for the in-custody murder, declined to set a specified head term but fixed a non-parole period of 25 years. The Crown appealed, arguing that the non-parole period was manifestly inadequate and should be extended by approximately four years.

  • Whether the non-parole period of 25 years set for the murder committed while in custody was manifestly inadequate.
  • Whether any imprecision in Adams J's remarks at first instance warranted intervention by the Court of Criminal Appeal.
  • How the non-parole period of 25 years compared with those set in analogous redetermination cases.

Decision

Grove J (with whom McClellan CJ at CL and Howie J agreed) dismissed the appeal. The Court accepted that some ambiguity existed in Adams J's resentencing remarks, but found that this did not compel intervention. Even accepting the Crown's characterisation of the seriousness of the offending, the 25-year non-parole period was consistent with the range established by comparable redetermination cases.

The Court reviewed a series of analogous matters involving multiple murders and contract or gangland killings. In no comparable case had a non-parole period exceeding 25 years been imposed, and in most cases the period was considerably lower. The 25-year period was therefore congruent with that established pattern.

The Court also emphasised that the life sentence itself remained in place as the head term. The fixing of a non-parole period establishes only a date of eligibility for parole consideration, not any entitlement to release. The parole authority retains an independent obligation to refuse release if community safety requires it, and the respondent would remain subject to the indeterminate head sentence for life.

Finally, Grove J noted that even if the imprecisions in Adams J's reasons were characterised as error, the Court retains a discretion to dismiss a Crown inadequacy appeal. In all the circumstances, that discretion would have been exercised to dismiss the appeal regardless.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a non-parole period of 25 years for a premeditated murder committed while in custody was within the range established by comparable redetermination cases, even where the offending was of a very high level of seriousness.
  • A non-parole period set on redetermination of a pre-1989 life sentence marks only a date of eligibility for parole consideration. The overarching indeterminate head sentence remains in force, and the parole authority must separately assess community safety before any release can occur.
  • Where some imprecision exists in a sentencing judge's reasons on redetermination, the Court of Criminal Appeal retains a discretion to dismiss a Crown appeal if the sentence imposed is not shown to fall outside the appropriate range.
  • Sentences redetermined in analogous cases formed a significant reference point. The Court found that non-parole periods in comparable contract and gangland killing matters did not exceed 25 years, lending support to the period fixed at first instance.
  • Evidence of rehabilitation in progress, even if not yet complete, is a relevant statutory consideration on a redetermination application under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1
- Criminal Appeal Act 1912 (NSW), clause 8 of Schedule 1
- Sentencing Act 1989 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Robinson [2008] NSWCCA 188