Crump v R

1. [1]

   MEAGHER JA: On 20 June 1974 the applicant was sentenced in the Supreme Court (Taylor J) after a jury returned verdicts of guilty against him and his co-offender, Allan Baker, in respect of four charges. Those charges included the murder of Ian James Lamb and the conspiracy to murder Virginia Gai Morse. In respect of those offences, Taylor J sentenced each of the applicant and Baker to two sentences of life imprisonment.

2. [2]

   When those sentences were passed, there was no requirement for the imposition of a minimum or non-parole term of imprisonment. At that time s 463 of the Crimes Act 1900 (NSW) conferred upon the Governor a power to release an offender on licence. The Sentencing Act 1989 (NSW) (the 1989 Act) was introduced to restore “truth in sentencing” (s 3) and “permitted a sentencing court imposing a determinate sentence of imprisonment to fix the minimum term to be served by an offender before being eligible for release on parole and introduced a detailed system for the making of parole orders by the parole authority … in respect of prisoners who had served their minimum term”: per Gummow, Hayne, Crennan, Kiefel and Bell JJ in Crump v New South Wales [2012] HCA 20; 247 CLR 1 at [43]. See also the discussion per McHugh, Gummow, Hayne and Heydon JJ in Baker v The Queen [2004] HCA 45; 223 CLR 513 at [27]-[29].

3. [3]

   Section 13A of the 1989 Act, which was inserted by the Sentencing (Life Sentences) Amendment Act 1989 (NSW) with effect from 12 January 1990, permitted a person serving an existing life sentence to apply to the Supreme Court for the determination of a minimum term and an additional term for that sentence. As French CJ noted in Crump v New South Wales at [8], the purpose of that section was “to enable prisoners who had been sentenced to life imprisonment before 1989 to be considered for possible release on parole”.

4. [4]

   The applicant made two applications under s 13A. The first was dismissed by Loveday J in December 1992. An appeal from that decision was also dismissed (Crump v R, Court of Criminal Appeal (NSW), 30 May 1994, unrep). His second application, made to McInerney J in 1997, was upheld. In his judgment delivered on 24 April 1997, McInerney J sentenced the applicant to a minimum term of 30 years imprisonment for the murder of Mr Lamb and an additional term for the remainder of his natural life. In relation to the conspiracy to murder, his Honour determined a sentence of 25 years imprisonment. No additional term was set for the second offence and, as French CJ also noted in Crump v New South Wales at [14], the source of the power to impose that sentence without also imposing an additional term (being either for a specified period or for the remainder of the applicant’s natural life: see s 13A(4)) is not apparent. The term of imprisonment for each sentence commenced on 13 November 1973, being the date on which the applicant was first remanded in custody for the offences: s 13A(5).

5. [5]

   The applicant seeks leave to appeal from the decision of McInerney J, but only in respect of the minimum and additional terms fixed for the murder conviction. It is not disputed that he has a right under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to do so with leave. Section 10(1) of that Act requires (and required in 1997) that any notice of an application for leave to appeal be filed within 28 days. The present application was filed on 23 April 2015. As the Crown observes, that was “just under 18 years out of time”. Accordingly, the applicant also requires a significant extension of the time in which to seek leave to appeal.

6. [6]

   The Crown opposes the application for an extension of time and the granting of leave to appeal. It submits that no error is demonstrated in relation to McInerney J’s determination and that there is, in any event, no utility in granting an extension of time or leave to appeal because any re-exercise of the Court’s power with respect to the re-determination of the life sentence fixed for Mr Lamb’s murder could not, by reason of cl 4(3) of Sch 1 to the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act), involve the setting of an additional term (or “specified term”) which was less than the remainder of the applicant’s natural life. In its opposition to the application for an extension of time the Crown also relies upon the length of the delay in the making of the application and the absence of any good reason for it.

7. [7]

   It is convenient at this point to refer to the provisions which govern the applicant’s right to appeal by leave. Before April 2000 the applicant had a right to appeal by leave against McInerney J’s determination. That right was provided in s 13A(12) of the 1989 Act. On 3 April 2000, the 1999 Act commenced and by Sch 1 repealed the 1989 Act. On the same day the right of appeal under the 1999 Act was extended to any determination made under the 1989 Act by the savings provision in cl 21(3) of Sch 2 to the later Act. That subclause provided:

8. [8]

   Clause 4 as originally enacted described the ways in which the Supreme Court could dispose of an application for the determination of a specified term and non-parole period in relation to an existing life sentence. The methods of disposal included, by cl 4(1)(b), “declining to set a specified term for the sentence but setting a non-parole period for the sentence”. By cl 19 of Sch 2 to the 1999 Act, McInerney J’s determination for the murder of Mr Lamb was to be taken as setting a non-parole period of 30 years and, by fixing an additional term which was for the remainder of the applicant’s natural life, as declining to set a specified term for that sentence. Clause 8(1)(a) of Sch 1 as originally enacted provided a right of appeal to this Court in relation to a determination “under clause 4(1)”, the Criminal Appeal Act applying to that appeal in the same way that it applies to an appeal against a sentence. As a result of Sch 2, cl 21(3), McInerney J’s determination answered that description.

9. [9]

   The Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW) amended cl 4 with effect from 20 July 2001 by the insertion of sub-cl 4(3). That amendment removed the Supreme Court’s power, in an application made under Sch 1 to the 1999 Act, to set a specified term for an existing life sentence in relation to an offender who had been the subject of a “non-release recommendation”. It provided:

10. [10]

    A “non-release recommendation” was defined to include an expression of opinion by the sentencing judge that the offender should never be released from imprisonment. Taylor J made such a recommendation, in the following terms, when sentencing the applicant and Baker:

11. [11]

    The Crimes Legislation Amendment (Existing Life Sentences) Act also amended cl 8(1)(a) of Sch 1 to provide for a right of appeal by leave in relation to a determination by the Supreme Court “under clause 4(1) or (3)”.

12. [12]

    As mentioned earlier, the Crown contends that the effect of these provisions is that even if there was error in the exercise of the power under s 13A by McInerney J, this Court could not form the view that “some other sentence … is warranted in law and should have been passed”, and proceed to pass such other sentence under s 6(3) of the Criminal Appeal Act, because its power to do so is now constrained by cl 4(3) of Sch 1.

13. [13]

    It will be necessary to return to this contention. However, because the Crown relies upon the lack of any demonstrated error on the part of McInerney J as the primary basis for its opposition to any extension of time and grant of leave, it is appropriate to address that subject first. For reason that from the applicant’s perspective finality in this matter is desirable, and for the reasons in [74]-[76] below, I also consider it necessary in this case to address in some detail the arguments sought to be advanced by the applicant in his proposed appeal.

The proposed grounds of appeal

1. [14]

   The applicant was not legally represented in his application to this Court. The two grounds specified in his Notice of Appeal are “miscarriage of justice” and “severity of sentence”. In each case reference also is made to the fact of the enactment of the 1999 Act.

2. [15]

   As I have already observed, the effect of the 1999 Act was that the applicant’s re-determined sentence for Mr Lamb’s murder was life imprisonment with a non-parole period of 30 years.

3. [16]

   Until the insertion of s 154A in the Crimes (Administration of Sentences) Act 1999 (NSW), that sentence included a prospect of release on parole. However, the enactment of that provision in July 2001 eliminated that prospect for the applicant other than in very limited circumstances. It provided and continues to provide that the State Parole Authority, which is responsible for the release of offenders on parole, may only make an order directing the release of an offender who is the subject of a “non-release recommendation”, if it:

4. [17]

   The applicant’s challenge to the validity of that amendment was rejected by the High Court in Crump v New South Wales.

The applicant’s argument

1. [18]

   The applicant filed two written submissions, each of two handwritten pages. He also addressed the Court orally. His first and principal submission is that his involvement in Mr Lamb’s murder was not sufficiently serious to warrant a sentence of life imprisonment, or in the language of s 13A(4) of the 1989 Act, an additional term for the remainder of his natural life. For that reason he argues that McInerney J erred and that this Court should re-determine his sentence for that offence. He refers to the sentences imposed on three other offenders convicted of murder in support of his argument that the sentence imposed on him was too high. His second written submission concludes:

2. [19]

   In oral argument, the applicant confirmed that this was the main matter that he wished to raise by his appeal. The transcript of argument includes the following submission (tpct 04/11/15, p 2):

3. [20]

   The remaining points made in the applicant’s written submissions are: that the conspiracy to murder charge of which he was also found guilty should not have been taken into account when determining the minimum and additional terms for the murder of Mr Lamb; that Taylor J’s comments made at the time he was sentenced are not relevant to be taken into account in his application to appeal against McInerney J’s determination; and finally that the enactment of the 1999 Act impacted adversely on him. The principal respect in which it is said to have done so seems to follow from the enactment of s 154A and not otherwise.

4. [21]

   These arguments direct attention to the criminality involved in the applicant’s offending and the reasoning of McInerney J for the determinations he made under s 13A.

The circumstances of the offending

1. [22]

   The applicant and Baker committed a number of very serious offences in northern New South Wales and Queensland in 1973. The following account is taken from the Crown’s written submissions to this Court which in turn summarise the Statement of Facts tendered in evidence before McInerney J. A more graphic factual account, taken from what the applicant told the police in signed records of interview, is contained in the judgment of Hunt CJ at CL in Crump v R (Court of Criminal Appeal (NSW), 30 May 1994, unrep) at 1-5.

2. [23]

   In October 1973, the applicant stole a car and joined Baker, who he had known for a couple of years, setting up camp to work as casual tractor drivers on a property near Boggabilla. That employment ceased on 2 November 1973 and the following day Baker, accompanied by the applicant, purchased a rifle at Goondiwindi in Queensland. That night, with the intention of stealing money and petrol, they approached Mr Lamb who was asleep in his car on the side of the road at Narrabri. When Mr Lamb awoke to tapping on the car window, Baker fatally shot him in the neck and the two offenders robbed him and fled.

3. [24]

   A few days later, on 7 November 1973 the applicant and Baker travelled to the Morse family property on the New South Wales/Queensland border. Baker had performed three weeks of casual work on the property in October 1972. The men watched the Morse family home through binoculars and saw Mr Morse take his children to the school bus before driving his truck away from the property. At that point, the two went in, bound and gagged Mrs Morse, ransacked the house, stealing two rifles amongst other items, carried Mrs Morse to her husband’s car and drove to where the stolen car had been hidden. They then transferred petrol from Mr Morse’s car before hiding it and driving off with Mrs Morse in the stolen car. At the first stop the offenders removed Mrs Morse from the vehicle, tied her limbs, removed her clothes and each raped her. They again raped Mrs Morse at the next stop which was across the Queensland border. Shortly afterwards the applicant shot Mrs Morse between the eyes while she was seated in front of a tree with her hands tied. Mrs Morse’s naked body was then concealed with sticks and rocks in a nearby stream.

4. [25]

   On 13 November 1973 the applicant and Baker committed another armed robbery in a house whose owner was also known to the applicant. Their stolen car was then sighted, that sighting was reported and a police chase involving five officers ensued. The applicant initially drove while Baker fired shots at the police but once they had alighted both shot at police intending to kill them so that they could get away. Constable Millward was shot in the head during these exchanges, but survived.

5. [26]

   The applicant and Baker were arrested and each was charged with the following offences:

6. [27]

   Neither was charged with the murder of Mrs Morse as that offence took place in Queensland.

The trial and sentence proceedings before Taylor J

1. [28]

   On 11 June 1974 the applicant and Baker pleaded not guilty to each of these counts and their trial proceeded before Taylor J and a jury. On 20 June 1974 the jury returned verdicts of guilty on all counts against both men. On the same day Taylor J imposed the following sentences on each offender: imprisonment for life on each of the first two counts and imprisonment for a period of 15 years with hard labour on the remaining two counts.

The application to McInerney J

1. [29]

   In April 1997, s 13A of the 1989 Act relevantly provided:

2. [30]

   The Crown opposed the application to determine each of the life sentences. It also sought a direction in relation to the life sentence for the murder of Mr Lamb pursuant to s 13A(8), which with s 13A(8C) then provided:

3. [31]

   McInerney J rejected the Crown’s application for a direction under s 13A(8): Judgment at 25-26. In support of that application the Crown submitted that when considering whether the applicant’s involvement in the murder of Mr Lamb was, within the language of s 13A(8C)(b), a “most serious case of murder”, the Court could have regard to the totality of the criminality involved in the four offences, including, in relation to the conspiracy to murder, the circumstances of the abduction, rape and killing of Mrs Morse. McInerney J rejected that argument, holding that the language of s 13A(8C) directed attention to the objective seriousness of the applicant’s involvement in the offence of murder alone: Judgment at 25.

4. [32]

   He accepted the submission made on behalf of the applicant that his involvement in Mr Lamb’s murder did not answer the description of “a most serious case of murder”, and concluded (Judgment at 26):

5. [33]

   McInerney J then proceeded to the question of the appropriate sentences to be determined for the murder and conspiracy to murder convictions. In relation to the latter, because it was “within the contemplation of Baker and Crump when they formed the conspiracy to murder that they intended to rape and then kill Mrs Morse so that she could not identify them”, he held (Judgment at 32) that it was appropriate to take those aggravating circumstances into account when determining an appropriate sentence.

6. [34]

   He then considered the applicant’s subjective circumstances, criminal history and conduct whilst in gaol, having earlier noted (referring to Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465) (Judgment at 27) that an offender’s criminal history could be taken into account provided that it was not given such weight as to lead to the imposition of a penalty which was disproportionate to the gravity of the relevant offence. With respect to the conspiracy offence he also noted that, of the various judges who had considered the applicant’s offending, “only Hunt CJ at CL [had] stated a firm view that the conspiracy to murder Mrs Morse is in the worst case category and thus deserves punishment for life” (Judgment at 54).

7. [35]

   McInerney J then proceeded to address the question of determining an appropriate sentence for the murder of Mr Lamb (Judgment at 60):

Was there error in determining the applicant’s sentence for the murder of Mr Lamb?

1. [36]

   There are two related respects in which the applicant complains about McInerney J’s determination of the sentence for his murder conviction. First, he says that an additional term of life was too long having regard to the nature of his involvement in that murder. Secondly, he says that his Honour should not have taken into account the “overall criminality involved” in the four offences when determining that sentence. In other words, he is to be taken to argue that the sentence was not proportionate to the gravity of his involvement in that murder and was made longer to take into account the criminality involved in the other three offences.

2. [37]

   In response the Crown submits, citing Spinks v R (Court of Criminal Appeal (NSW), 7 August 1997, unrep), that considerations of totality are relevant to the discretionary decision made in connection with the determination of the additional term. The parties’ arguments direct attention to the application of the proportionality and totality principles in relation to the re-determination of a life sentence under s 13A.

3. [38]

   The proportionality principle requires that the punishment imposed for a crime be proportional to its seriousness. In Hoare v The Queen [1989] HCA 33; 167 CLR 348 it was said (at 354) that a sentence should “never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”.

4. [39]

   The totality principle requires, when multiple offences are involved, that the sentencing judge ensure that the total effective sentence imposed not exceed the overall criminality involved in the offences. In Mill v The Queen [1988] HCA 70; 166 CLR 59 (after referring to the statement of the totality principle in David Arthur Thomas, Principles of Sentencing, (2nd ed 1979, Heinemann Educational) at 56-57), Wilson, Deane, Dawson, Toohey and Gaudron JJ said (at 63) that, having calculated the appropriate sentence for each offence, the sentencing judge could proceed to give effect to that principle “either by making [the] sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed”.

5. [40]

   In Johnson v The Queen [2004] HCA 15; 78 ALJR 616 it was argued that this statement was inconsistent with the position being as summarised in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [45] that a “judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality”. This was said to exclude the second course described in Mill of lowering each sentence and then aggregating them before determining the overall time to be served.

6. [41]

   In rejecting this submission, Gummow, Callinan and Heydon JJ said at [26]:

7. [42]

   Of particular relevance in the present context is the Court’s emphasis on the need for the adoption of an approach that correctly and consistently applies the totality principle, necessarily after taking account of the statutory regime under which the sentencing exercise is to occur. Here that regime (s 13A) enabled the Supreme Court to vary an existing life sentence by fixing a minimum term of imprisonment and an additional term during which the prisoner might be released on parole. Applications for the exercise of that power could be made many years after the life sentence was imposed and in circumstances where other sentences also had been imposed, either before, at the same time as, or after the relevant life sentence, and in respect of conduct that may or may not have been related to the conduct for which the life sentence was imposed.

8. [43]

   At the time the application was before McInerney J, s 13A(9) provided that in exercising that function, the Court was “to have regard to”:

9. [44]

   Most significantly, s 13A(5) provided that the minimum term of any re-determined sentence was to commence on the date on which the original sentence commenced or, if the person had been remanded in custody for the offence, on the date on which the first such remand commenced. That provision restricted the ability of the Court when re-determining more than one life sentence, or making a re-determination in circumstances where the offender had been sentenced for other crimes, to consider questions of cumulation and concurrency, not only in order to avoid double punishment in an appropriate overall sentence, but also in order to ensure that the offender was appropriately punished for those other crimes.

10. [45]

    These difficulties were confronted by Hunt CJ at CL in R v Purdey (1992) 65 A Crim R 441. There the application under s 13A was made in circumstances where, before the life sentence for murder had been imposed, Purdey had been sentenced for other serious offences committed before the murder. Hunt CJ at CL said at 446-447:

11. [46]

    On the appeal from that determination Carruthers J (Gleeson CJ and Mahoney JA relevantly agreeing) accepted the correctness of these observations as to the principles to be applied when re-sentencing under s 13A: R v Purdey (1993) 31 NSWLR 668 at 669, 670, 679-680.

12. [47]

    In Fenech (Supreme Court (NSW), 4 September 1997, unrep) Barr J applied the same approach in a case where the offender had been sentenced for other serious crimes after the life sentence had been imposed. He said (at 18):

13. [48]

    With effect from 9 May 1997, s 13A was amended by the insertion of subs 4A (Sentencing Legislation Further Amendment Act 1997 (NSW)) which provided:

14. [49]

    In R v Picknell (Supreme Court (NSW), 10 November 1998, unrep) Wood CJ at CL also applied Purdey in circumstances where the offender had been sentenced for other crimes after the life sentence had been imposed. He observed (at 13):

15. [50]

    The correctness of this approach and its consistency with the application of the totality principle in Pearce was considered by this Court in R v Salameh [1999] NSWCCA 300 and R v Maiden [2000] NSWCCA 519. In Salameh it was said that the sentencing judge (also McInerney J) had erred in taking into account sentences imposed after the life sentence. Wood CJ at CL (Newman J and Foster AJ agreeing) rejected that submission and the consequent argument that the primary judge had not correctly applied the totality principle as described in Mill and Pearce. Citing this Court’s decision in Spinks, his Honour noted that it was not in question that the totality principle applied to a determination of minimum and additional terms under s 13A.

16. [51]

    Wood CJ at CL continued in Salameh:

17. [52]

    In Maiden it was again submitted that the judge re-determining the sentence (Dunford J) had erred in taking into account that an otherwise appropriate murder sentence had to be backdated and that doing so would, unless that sentence was made longer, leave the offender unpunished for other offences of which he had been convicted and sentenced. Whealy J (Sully and Howie JJ agreeing) rejected that argument, referring to Salameh and emphasising the significance of s 13A(5) in the sentencing exercise under s 13A:

18. [53]

    The task facing McInerney J was to re-determine the life sentence fixed for the murder of Mr Lamb in circumstances where there had been concurrent sentences of 15 years imposed for each shooting offence, which by 1997 had been served, and a further concurrent (and re-determined) sentence imposed for the conspiracy to murder Mrs Morse. In considering the appropriate sentences for the murder and conspiracy offences, his Honour noted that whilst he could have regard to the applicant’s criminal history, that could not lead to the imposition of sentences that were disproportionate to the gravity of those offences (Judgment at 27).

19. [54]

    In determining an appropriate sentence for the conspiracy offence, McInerney J took into account the aggravating circumstances described in [33] above. He held an appropriate sentence for that offence to be 25 years imprisonment (Judgment at 61). In considering the appropriate sentence for the murder of Mr Lamb, his Honour had earlier concluded that the applicant’s involvement in that offence did not constitute the “most serious type of murder for the purpose of setting an appropriate determinate sentence” (Judgment at 26).

20. [55]

    His Honour then took into account the operation of s 13A(5) which prevented him from making the re-determined sentences wholly or partly cumulative with each other, or with the sentences for the other two crimes (Judgment at 60). That being the position, it was necessary that the re-determined, and necessarily concurrent, appropriate sentence to be imposed for the murder, in the language of Wood CJ at CL in Picknell, be “extended” to ensure that the applicant did not go unpunished or insufficiently punished for the other three offences, and in particular the conspiracy to murder.

21. [56]

    At the same time, as McInerney J also noted, it was necessary to ensure that the severity of the overall sentence was not “too much” (per Lord Parker LCJ in Reg v Faulkner (1972) 56 Cr App R 594 at 596) in the context of the applicant’s overall culpability. Finally, it was identified as relevant that the applicant would “need constant supervision and guidance for the rest of his life, if and when he [was] released from gaol” (Judgment at 60).

22. [57]

    His Honour’s statement that the “longest” sentence was designed “to reflect the overall criminality involved in all the offences” is to be understood as taking account of each of these considerations, so as to ensure that the applicant did not go unpunished for the other three offences (the sentences for which had been or were to be served concurrently) and that the overall sentence was just and appropriate.

23. [58]

    His Honour did not err in approaching the exercise of re-determination in this way and in this case the considerations to which he referred warranted the determination of a sentence with an additional term for the remainder of the applicant’s natural life. As his Honour acknowledged, the applicant’s involvement in Mr Lamb’s murder cannot be characterised as a most serious or worst case of the offence. However, if an appropriate sentence could have been imposed for the murder and at least part of it ordered to be served cumulatively, it would not have commenced until after the applicant had been appropriately punished for the conspiracy to murder Mrs Morse and the remaining two offences. The minimum term of 30 years and additional term of life imposed for Mr Lamb’s murder reflect that outcome.

24. [59]

    In his written submissions, the applicant refers to the sentences imposed in R v Hill [2003] NSWCCA 128; R v Valiukas [2009] NSWSC 808 and R v Cousens [2011] NSWSC 1375. None of these decisions involved the re-determination of a life sentence in circumstances where there were other concurrent sentences served, or to be served. The head sentences imposed for those murders ranged between 18 and 30 years. Each obviously depended on the objective circumstances of the relevant crime and took account of the subjective features of each offender. The applicant submits that, although in these cases head sentences in that range were imposed for murders of varying degrees of seriousness, the sentence he has served for the murder of Mr Lamb is “41 years 8 months”. That is not so. As the discussion above shows, the time that the applicant has spent in gaol has not been referable only to that offence. The true position, as I have explained and McInerney J said, is that the minimum and additional term “reflect the overall criminality involved in all the offences” (Judgment at 60).

25. [60]

    For these reasons, no error of principle is disclosed in McInerney J’s re-determination of the applicant’s life sentence for Mr Lamb’s murder. Nor is the outcome of that exercise manifestly or obviously excessive. The same analysis demonstrates why that is so. For completeness I note that it was not suggested by the applicant that his Honour erred in the finding of any facts that were taken into account in the re-determination exercise.

Remaining arguments of the applicant

1. [61]

   I will deal briefly with the remaining two matters raised by the applicant (see [20] above). As to the first, for the reasons given above, the primary judge correctly took into account the sentence imposed for the conspiracy to murder and the fact that it was to be served concurrently, when re-determining the sentence for Mr Lamb’s murder. As to the second, I accept that the comments made by Taylor J when sentencing the applicant would not be relevant to the determination of his proposed appeal. Their lasting significance to the applicant is that they constitute a “non-release recommendation”, and that remains the position because of the definition of that expression (s 13A(1)) notwithstanding that McInerney J, when re-determining his life sentence, did not make such a recommendation.

Whether this Court has power, in the event that there was error, to determine a specified term for the life sentence

1. [62]

   The absence of such power is raised by the Crown as a separate reason for refusing the application for an extension of the time in which to seek leave to appeal. The argument made by the Crown in support of that submission was brief and, understandably, no response was made to it by the applicant. In view of my conclusion that the proposed appeal does not have reasonable prospects of success, it is unnecessary ultimately to decide this question in order to dispose of the application for leave to appeal. However, whether the applicant’s pursuit of the opportunity to appeal is futile because this Court cannot reduce his existing head sentence of life imprisonment remains relevant to his application for an extension of time. For that reason I propose to express my view as to this Court’s power in the event that it was satisfied that there had been error on the part of McInerney J.

2. [63]

   By cl 21(3) of Sch 2 to the 1999 Act, McInerney J’s determination (although made under the 1989 Act) was taken to be a determination under cl 4 of Sch 1 to the later Act. Accordingly the applicant’s right of appeal was conferred by cl 8(1)(a) of Sch 1 to the 1999 Act. That right arose upon the 1999 Act’s commencement on 3 April 2000 and replaced the right of appeal arising under the 1989 Act in respect of that determination. At the time McInerney J’s determination was taken to have been made under cl 4, that clause contained no restriction on the Supreme Court’s power to determine applications made by offenders subject to a “non-release recommendation”. As is explained in [9] above, that restriction took effect from July 2001.

3. [64]

   By cl 8(2) of Sch 1, the Criminal Appeal Act applied to that appeal in the same way that it applied to an appeal against sentence. An appeal against sentence is governed by s 5(1)(c) of the Criminal Appeal Act. The power of this Court to re-sentence (or in this case to re-determine the life sentence) is conferred by s 6(3):

4. [65]

   The power to intervene and duty to re-sentence is enlivened if this Court forms the opinion referred to in that section: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35]. Whether some other sentence “should have been passed” directs attention to the sentencing exercise undertaken and the statutory regime under which it was affected. In other words, the question whether there was error on the part of the sentencing judge is to be addressed by reference to sentencing law and practice at the time the sentence was imposed. In this case, that law did not include cl 4(3).

5. [66]

   Whether a more or less severe sentence “is warranted in law” requires reconsideration of the sentencing discretion “taking into account all relevant statutory requirements and sentencing principles” per Spigelman CJ in Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284 at [19], in a passage approved by the plurality in Kentwell at [42].

6. [67]

   The issue raised by the Crown’s argument is whether in this case the “relevant statutory requirements and sentencing principles” include cl 4(3), which in its terms is directed to the jurisdiction of the Supreme Court in disposing of an “application in relation to an existing life sentence”. In that respect it is immediately to be contrasted with Pt 3 of the 1999 Act which lays down the sentencing procedures to be applied by a “court”, which by s 3(1) includes the Supreme Court and the Court of Criminal Appeal.

7. [68]

   The power conferred on this Court by s 6(3) is to pass “such other sentence”, being the sentence that it is of opinion “is warranted in law” and “should have been passed”. The use of the present tense in the expression “is warranted in law” indicates that regard must be had to the current law to the extent that it is intended to operate with respect to any re-sentencing exercise undertaken by this Court in the face of error on the part of the sentencing judge. For any law to have such an operation requires a very clear indication that it is intended to do so. As Mason CJ and McHugh J observed in Radenkovic v The Queen [1990] HCA 54; 170 CLR 623 at 632:

8. [69]

   It is only where Parliament manifests an intention “that a new sentencing regime operate retrospectively, [that] the courts will give effect to that intention”: per Spigelman CJ in R v MJR [2002] NSWCCA 129; 54 NSWLR 368 at [26].

9. [70]

   Clause 4(3) does not purport to apply to an exercise or re-exercise of the power to make a determination under cl 4(1) by the Court of Criminal Appeal. In its terms it applies only to the determination by the Supreme Court of an application “in relation to an existing life sentence” and must be taken to refer to such an application under cl 2(1) of Sch 1. The language reveals an intention that it operate prospectively in relation to such applications made to the Supreme Court, and not otherwise.

10. [71]

    The Crown submitted that cl 4 is merely procedural, and for that reason should be given a retrospective operation. That submission must be rejected. As was observed by McHugh, Gummow, Hayne and Heydon JJ in Baker v The Queen at [32], s 13A both created new rights and conferred jurisdiction on the Supreme Court to alter or vary the order of the sentencing judge. Clause 4(3) qualifies those rights as created, limits the jurisdiction of the Supreme Court to alter or vary the order of the sentencing judge in such cases and does so in a way which is substantially detrimental to the applicant.

Applications for extension of time and leave to appeal

1. [72]

   The applicant was required to give notice of his intention to apply for leave to appeal within 28 days of the determination of McInerney J. Section 10(1)(b) of the Criminal Appeal Act permits the Court to extend that time. Such a power exists to ensure that the provisions fixing the time for making an appeal or seeking leave to appeal do not become “instruments of injustice” and enables the Court to extend time where that is necessary to do justice between the parties: per McHugh J in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at [2]. Ordinarily, it will be necessary to consider the nature of and reasons for any delay, the prospects of the proposed appeal and the significance to the parties of the granting or refusing of the application for an extension of time. This last matter is of particular relevance in this case.

2. [73]

   The application for leave to appeal was filed nearly 18 years out of time. In his affidavit in support of the application for an extension of time the applicant says (with minor corrections):

3. [74]

   The applicant’s affidavit does not indicate what advice or reasons he might have received which would explain the absence of any assistance from the Legal Aid Commission in relation to the making of his present application. In the past he has been able to bring proceedings with the benefit of legal aid or other representation. In 1994 he appealed from the decision of Loveday J and, much later, challenged the validity of s 154A in the High Court in Crump v State of New South Wales. In these circumstances it is difficult to exclude as one explanation for his undoubted delay in making the present application that he was unable to secure the assistance of legal aid because his proposed appeal was assessed as not having good prospects of success. That being the position is consistent with the view that I have formed, albeit after a detailed consideration of the merits of the proposed appeal.

4. [75]

   Nevertheless a successful outcome could have real significance for the applicant (if on any re-determination by this Court a specified term was set) in view of the enactment of s 154A which has effectively eliminated the prospect for him of release on parole other than in very limited circumstances (see [16] above). His challenge to that legislation was dismissed on 4 May 2012. From that time the only remaining course presenting the possibility of release during his life-time (in circumstances other than those contemplated by s 154A) was a successful appeal from the determination of McInerney J. The applicant’s pursuit of the challenge to s 154A may partly explain his delay in making the present application.

5. [76]

   There is undoubtedly a public interest in the avoidance of delay in the bringing of appeals against sentence and in ensuring the outcome of finality in sentencing litigation. However, the circumstances of the present case are exceptional, especially taking into account the enactment of s 154A, its effect on the sentence imposed by McInerney J and the applicant’s unsuccessful challenge to that legislation. The applicant delayed a further two years from May 2012 before making his present application for leave. He is now 66 years of age and has spent over 42 years in custody. Notwithstanding my view that his appeal does not have good prospects of success, the interests of justice required that he be given the opportunity to argue his application for leave and have this Court’s fairly extensive reasons for rejecting it.

6. [77]

   Nonetheless, in the light of those reasons, his application for leave to appeal should be dismissed.

Conclusion

1. [78]

   The orders I propose are:

2. [79]

   ROTHMAN J: I agree with Meagher JA.

3. [80]

   BELLEW J: I agree with Meagher JA.