Crump v New South Wales

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ.,Gummow,Hayne,Crennan,Kiefel,Bell JJ,Heydon J.
• Judgment Date: 04 May 2012
• Neutral Citation: [2012] HCA 20,2012-0504 HCA A
• Docket Number: S165/2011
• Date: 04 May 2012

Kevin Garry Crump

Plaintiff

and

State Of New South Wales & Anor

Defendants

[2012] HCA 20

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

S165/2011

HIGH COURT OF AUSTRALIA

Crump v New South Wales

Constitutional law (Cth) — Judicial power of Commonwealth — Constitution, Ch III — Sentencing and parole procedure — Whether determination made under s 13A of Sentencing Act 1989 (NSW) is a ‘matter’ within s 73 of Constitution — Whether s 154A of Crimes (Administration of Sentences) Act 1999 (NSW) invalid for setting aside, varying, altering or otherwise stultifying a judgment, decree, order or sentence of Ch III court.

Words and phrases — ‘parole’, ‘sentencing’.

Constitution, s 73.

Crimes Act 1900 (NSW), s 463.

Crimes (Administration of Sentences) Act 1999 (NSW), ss 143, 154A.

Sentencing Act 1989 (NSW), s 13A.

Representation

B W Walker SC with G E S Ng for the plaintiff (instructed by Legal Aid NSW)

M G Sexton SC, Solicitor-General for the State of New South Wales with N J Adams and A M Mitchelmore for the first defendant (instructed by Crown Solicitor (NSW))

Submitting appearance for the second defendant

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with K C Morgan intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))

S G E McLeish SC, Solicitor-General for the State of Victoria with E A Bennett intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R M Mitchell SC with C S Bydder intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))

M G Evans QC with A J Keane intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))

The questions reserved in the special case dated 28 November 2011 be answered as follows:

Question 1: Is s 154A of the Crimes (Administration of Sentences) Act 1999 (NSW), in its purported application to the plaintiff, invalid, in that it has the effect of:

varying or otherwise altering a judgment, decree, order or sentence of the Supreme Court of New South Wales in a ‘matter’ within the meaning of s 73 of the Constitution?

Answer: No.

Question 2: Who should pay the costs of the special case?

Answer: There should be no order as to costs.

French CJ.

Introduction

1 In 1974, the plaintiff was sentenced, in the Supreme Court of New South Wales, to life imprisonment on each of two counts. One sentence was imposed for the murder of Ian James Lamb 1. The other sentence was imposed for conspiracy to murder Virginia Gai Morse 2. Mr Lamb was killed by the plaintiff's co-offender, Baker, in the course of an opportunistic robbery. The plaintiff was convicted as an accessory to the murder. Mrs Morse was kidnapped and raped by both the plaintiff and his co-offender and killed by the plaintiff with a rifle shot to her head. The killings were callous, and in the case of Mrs Morse, preceded by pitiless and degrading abuse.

2 Taylor J declined to fix a non-parole period for either the plaintiff or Baker 3. At the end of his remarks in sentencing the plaintiff and Baker, Taylor J said 4:

‘I believe that you should spend the rest of your lives in gaol and there you should die. If ever there was a case where life imprisonment should mean what it says — imprisonment for the whole of your lives — this is it.’

At that time his Honour's remarks to the effect that the plaintiff should never be released had no statutory consequences 5. Later, however, the New South Wales Parliament legislated to attach statutory consequences to such non-statutory, non-release recommendations 6. The validity of that legislation was upheld in Baker v The Queen7.

3 In 1997, a Judge of the Supreme Court (McInerney J) made an order under s 13A of the Sentencing Act 1989 (NSW) (‘the 1989 Act’) replacing the plaintiff's life sentence for the murder of Mr Lamb with a minimum term of 30 years imprisonment, expiring on 12 November 2003, and an additional term of imprisonment for the remainder of the plaintiff's natural life 8. That order had the effect that the plaintiff was ‘eligible’ for release on parole from 1November 2003. He could only be released if the Parole Board of New South Wales (‘the Parole Board’), renamed in 2005 as the New South Wales State Parole Authority (‘the Authority’) 9, made an order to that effect. The life sentence imposed on the plaintiff for the conspiracy to murder Mrs Morse was replaced with a sentence of 25 years imprisonment.

4 In 2001, a new section, s 154A, was introduced into the Crimes (Administration of Sentences) Act 1999 (NSW) (‘the Administration Act’) which had the effect of preventing persons in the plaintiff's category, that of a serious offender the subject of a non-release recommendation, from being released on parole unless in imminent danger of death or so incapacitated that he lacked the

physical capacity to harm another 10. The plaintiff commenced proceedings in the original jurisdiction of this Court. He contended that, in its application to him, s 154A was invalid because it constituted an impermissible legislative alteration of the judicial decision of the Supreme Court which had rendered him eligible for parole from 13 November 2003. He sought declaratory relief.

5 A special case raising the question of validity was agreed between the parties and was referred to a Full Court of this Court. For the reasons that follow, and the reasons given in the joint judgment, s 154A is valid in its application to the plaintiff.

Legislative and sentencing history

6 The statutory scheme for release on parole which was in place at the time that the plaintiff was first sentenced in 1974 was created by the Parole of Prisoners Act 196(NSW) 11. That Act was repealed and replaced by the Probation and Parole Act 1983 (NSW) 12.

7 The central purpose of the 1989 Act, as described in the Second Reading Speech in May 1989, was to ‘restore truth in sentencing.’ 13 At the time, persons sentenced to life imprisonment were said to be serving, on average, 11 to 12 years imprisonment 14. In November 1989 a package of complementary amending Acts was passed 15. Their stated purpose, like that of the 1989 Act, was

to ‘fulfill the Government's commitment to ensuring truth in sentencing.’ 16 One component of the package, the Crimes (Life Sentences) Amendment Act 1989 (NSW), introduced s 19A into the Crimes Act 1900 (NSW) (‘the Crimes Act’). That section provided that a person who committed the crime of murder was liable to penal servitude for life and that ‘[a] person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life.’ 17 The section was expressed to apply to sentences passed after the commencement of the section for murders committed before or after its commencement 18. It did not apply to the sentence imposed upon the plaintiff. Nor did it affect the prerogative of mercy 19.

8 The Sentencing (Life Sentences) Amendment Act 1989 (NSW) was another part of the package. It inserted s 13A into the 1989 Act. That was the section applied by McInerney J in resentencing the plaintiff in 1997. Its stated purpose was to enable prisoners who had been sentenced to life imprisonment before 1989 to be considered for possible release on parole 20. The new section provided that a person serving an existing life sentence could apply, after having served at least eight years of the sentence, to the Supreme Court for the determination of a minimum term and an additional term for the sentence 21. The Supreme Court was empowered to set both a minimum term of imprisonment that the person must serve for the offence for which the life sentence was originally imposed and an additional term during which the person might be released on parole 22. The Court could also decline to do so 23. In setting a minimum term and an additional term, the Court was required to have regard to any report on the person made by the Serious Offenders Review Board 24 and any other relevant reports prepared

after sentence. The Court was also required to have regard to any relevant comments made by the original sentencing judge when imposing the sentence and any other relevant matter 25. The Court was directed to have regard to the knowledge of the original sentencing court ‘that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the [Crimes Act] and of the practice relating to the issue of such licences’ 26. A minimum term and an additional term, set pursuant to s 13A, replaced the original sentence of imprisonment for life 27. An appeal lay to the Court of Criminal Appeal in relation to a determination made under the section or a decision to decline to make such a determination 28.

9 Section 13A reflected similar provisions introduced into Commonwealth law and the laws of other States 29. It conferred a new jurisdiction on the Supreme Court. The resentencing for which it provided was an exercise of judicial power 30. The distinction between judicial and executive functions in relation to the sentencing and release of prisoners under the regime established by s 13A was pointed out in the Second Reading Speech 31:

‘As a result of this amendment, these offenders will be considered for release at a time specified by a Supreme Court judge. It is important to emphasise, however, that this date is only a date at which the prisoner will be considered for release. Whether a particular offender will or will not be released will be a matter for the Offenders Review Board.’

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