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Court of Criminal Appeal 5 February 2016

Crump v R

[2016] NSWCCA 2

Homicide
CRIMINAL LAW SENTENCE

Citation: Crump v R [2016] NSWCCA 2
Court: Court of Criminal Appeal (NSW)
Date: 5 February 2016
Judge(s): Meagher JA (principal judgment); Rothman J and Bellew J (agreeing)

Background

In June 1974, the applicant was convicted of murder and conspiracy to murder, receiving two life sentences. At that time, no minimum or non-parole term was required, and the Governor held a discretionary power to release prisoners on licence.

In 1997, the applicant made a successful application under s 13A of the Sentencing Act 1989 (NSW), which allowed prisoners serving pre-1989 life sentences to seek determination of minimum and additional terms. McInerney J fixed a minimum term of 30 years for the murder, with an additional term for the remainder of the applicant's natural life. A concurrent 25-year term was set for the conspiracy.

In April 2015, almost 18 years after that determination, the applicant sought leave to appeal against McInerney J's decision, challenging only the terms fixed for the murder conviction. The Crown opposed both the extension of time and the grant of leave.

  • Whether McInerney J erred by taking into account the overall criminality of all four offences (including the conspiracy to murder) when determining the sentence for the murder alone.
  • Whether the additional term of life imprisonment fixed for the murder was excessive given the nature of the applicant's involvement in that offence.
  • Whether, if error were established, the Court of Criminal Appeal had power to re-determine an additional term of less than life imprisonment, given the restrictions imposed by Schedule 1, cl 4(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

On considering overall criminality across multiple offences: The Court rejected the applicant's submission that McInerney J was wrong to take account of the totality of his offending. The application of the totality principle must be understood within the governing statutory framework. Under s 13A(5), any re-determined sentence was required to commence on the same date as the original sentence, meaning all sentences ran concurrently. In those circumstances, it was proper for the sentencing judge to ensure the murder sentence adequately reflected the full weight of the applicant's criminality across all offences, so that he did not go unpunished or insufficiently punished for the others.

On the severity of the additional term: The Court dismissed the applicant's contention that he had served more than 41 years for the murder alone. Time spent in custody was not referable exclusively to that offence; it was also attributable to the other concurrent sentences. Accordingly, no error was identified in the severity of the additional term.

On the Court's power to re-determine: Because the Court found no error in the original determination, it was unnecessary to resolve definitively whether Sch 1, cl 4(3) of the 1999 Act prevented the Court from imposing an additional term shorter than the applicant's natural life. The Court did observe, however, that the language of that provision suggested a prospective operation and that the clause should not lightly be given retrospective effect, as it qualifies rights and is substantially detrimental to the applicant.

On the extension of time: Despite the near-18-year delay and the absence of a compelling explanation, the Court granted the extension. The circumstances were considered exceptional, particularly given the enactment of s 154A of the Crimes (Administration of Sentences) Act 1999 (NSW), which had effectively eliminated the prospect of release on parole, and the applicant's unsuccessful constitutional challenge to that legislation. The Court considered the interests of justice required the applicant be given the opportunity to argue his case and receive detailed reasons for its rejection. Nonetheless, leave to appeal was ultimately refused.

Orders Made

  • The time for the applicant to apply for leave to appeal was extended up to and including 23 April 2015.
  • The application for leave to appeal from the determination of McInerney J of 24 April 1997 was dismissed.

Key Takeaways

  • Under s 13A of the Sentencing Act 1989 (NSW), where all re-determined sentences run concurrently by operation of s 13A(5), a sentencing judge is entitled to structure the principal sentence so that it reflects the totality of the offender's criminality across all concurrent offences, ensuring no offence goes unpunished.
  • Time spent in custody attributable to concurrent sentences cannot be characterised as referable solely to one offence when an applicant argues that the custodial period for that single offence is disproportionate.
  • The Court of Criminal Appeal left open whether Sch 1, cl 4(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) operates retrospectively to restrict the appellate court's power to impose an additional term shorter than life, noting significant doubt about retrospective application.
  • A very lengthy delay in seeking leave to appeal against a sentence determination will not automatically defeat an extension of time application where exceptional circumstances exist, including legislative changes that substantially affect the practical operation of the original sentence.
  • In dismissing the application, the Court acknowledged that a successful outcome would have had real practical significance for the applicant given the effect of s 154A, underscoring the importance of providing full reasons even when the appeal lacks good prospects.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 19, 463
- Crimes (Administration of Sentences) Act 1999 (NSW), s 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Sch 1 (cl 4(3)), Sch 2
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 10
- Sentencing Act 1989 (NSW), s 13A
- Sentencing (Life Sentences) Amendment Act 1989 (NSW)
- Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW)
- Sentencing Legislation Further Amendment Act 1997 (NSW)

Key Cases:
- Baker v The Queen [2004] HCA 45; 223 CLR 513
- Crump v New South Wales [2012] HCA 20; 247 CLR 1
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- R v Purdey (1992) 65 A Crim R 441; (1993) 31 NSWLR 668
- R v Salameh [1999] NSWCCA 300
- R v Maiden [2000] NSWCCA 519
- Hoare v The Queen [1989] HCA 33; 167 CLR 348
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Gallo v Dawson [1990] HCA 30; 64 ALJR 458