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Supreme Court 19 November 1999

REGINA v MAIN

[1999] NSWSC 1174

HomicideTheft & property
DETERMINATION OF LIFE SENTENCE S13A SENTENCING ACT 1989 PURPOSE OF ELEMENT OF RETROSPECTIVITY SIGNIFICANCE OF REHABILITATION RELEVANCE OF VICTIMS' IMPACT STATEMENTS

Citation: REGINA v MAIN [1999] NSWSC 1174 revised – 26/06/2000
Court: Supreme Court of New South Wales, Criminal Division
Date: 19 November 1999
Judge(s): Adams J

Background

The applicant was convicted of two separate murders and one armed robbery committed in 1983, receiving concurrent life sentences. The first murder occurred during an attempted armed robbery at a private home. The second, committed while the applicant was on remand awaiting trial for the first offence, was a contract killing carried out in exchange for a quantity of heroin.

The applicant had previously sought re-determination of his life sentences under s 13A of the Sentencing Act 1989 in 1995. On that occasion, Allen J dismissed the application, finding the objective gravity of the offences so great as to preclude re-determination at that time, and specified a two-year waiting period before any further application could be made.

The applicant returned to court in 1999 seeking a fresh re-determination. He had by then served over 16 years on the first two sentences and approximately 12 years on the sentence for the contract killing. The Serious Offenders Review Council prepared a report for the current application, and the applicant's son gave evidence in support.

  • Whether the applicant's life sentences should be re-determined under s 13A of the Sentencing Act 1989 by substituting a minimum term and an additional term
  • Whether a direction under s 13A(8)(a) should be made, precluding the applicant from ever reapplying for re-determination (a "never reapply" order)
  • The weight to be given to evidence of rehabilitation in proceedings under s 13A, as compared with an original sentencing
  • The relevance and treatment of Victims' Impact Statements in this context

Decision

Adams J declined to re-determine the life sentences and dismissed the application, though he also declined to make a direction under s 13A(8)(a) that would permanently bar future applications.

The court found that the applicant had shown some genuine, if modest, progress towards rehabilitation in the two years since the previous application. He had become an active contributor to Narcotics Anonymous within the prison and was regarded as an excellent worker. However, the Serious Offenders Review Council stopped short of assessing him as suitable for eventual release, and the applicant continued to require a substantial daily methadone dose. The court characterised this progress as real but insufficient.

More significantly, the applicant continued to deny any involvement in the contract killing of Cameron, which Adams J found deeply troubling. The denial not only removed any available credit for remorse and contrition but also introduced uncertainty about the degree to which genuine rehabilitation had occurred. The court observed that Cameron's murder, committed in prison while on remand, was a cold, calculated assassination warranting the gravest possible view.

Adams J drew a distinction between the sentencing context under s 13A and an original sentencing. Because s 13A expressly requires the court to consider material changes in character, including rehabilitation, the provision carries a built-in acknowledgment that even prisoners convicted of the most serious murders may eventually demonstrate sufficient rehabilitation to warrant a minimum term. This distinction led the court to decline the permanent "never reapply" direction, preserving the possibility of a future successful application if rehabilitation advances materially.

Orders Made

  • Application for re-determination of life sentences dismissed
  • Applicant directed not to reapply to the Court under s 13A of the Sentencing Act 1989 for a period of two years from 9 July 1999

Key Takeaways

  • Under s 13A of the Sentencing Act 1989, a court conducting a re-determination of a life sentence operates in a materially different sentencing context from an original sentencing, because the provision expressly requires consideration of rehabilitation and changes in character since the original sentence was imposed.
  • A direction under s 13A(8)(a) permanently barring any future application may only be made where the murder is a "most serious case" and it is in the public interest for the life sentence to be permanent. Adams J noted he would have considered such an order appropriate had he been sentencing the applicant for the first time under current sentencing patterns.
  • The retrospective dimension of s 13A reflects the former availability of release on licence under the old law, meaning that even prisoners convicted of crimes that would now attract a life-means-life sentence may qualify for a minimum term if rehabilitation is sufficiently demonstrated.
  • Continued denial of a convicted crime is a significant factor weighing against re-determination, both because it undermines assessments of rehabilitation and because it forecloses any credit for genuine remorse.
  • Partial progress toward rehabilitation, while acknowledged, does not of itself justify re-determination. The court found that the applicant needed to demonstrate considerably greater rehabilitation before a minimum term could be contemplated.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW), s 13A
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW) (as it formerly stood, regarding release on licence)

Cases
- Regina v Christopher Hatziathanasiou (unreported, NSWSC, 25 October 1995)
- Regina v Terry Mark Hitchins (unreported, NSWSC, 3 June 1993)
- Regina v Anthony Lanigan (unreported, NSWCCA, 31 August 1992)
- Regina v Purdey (unreported, NSWSC, 5 November 1992)
- Bugmy v The Queen (1990) 160 CLR 525