9.1 A sentence of life imprisonment is the prescribed maximum penalty for murder1 and for commercial drug trafficking,2 although the discretion to impose lesser penalties for these offences is preserved.3 Since the proclamation of the Crimes (Life Sentences) Amendment Act 1989 (NSW) on 12 January 1990, a sentence to life imprisonment has meant imprisonment for the period of the prisoner’s “natural life”.4 The provisions of the Sentencing Act 1989 (NSW) generally require that a sentence of imprisonment must comprise a minimum and additional term, but this does not apply to life or other indeterminate sentences.5 In New South Wales it is not possible for a prisoner to be released from a life sentence under the current provisions except in the exercise of the Royal prerogative.6
LIFE SENTENCES WITH MINIMUM TERMS
9.2 Although s 13(c) of the Sentencing Act 1989 (NSW) does not allow the option of setting a minimum term when a sentence of life imprisonment is imposed, a life sentence consisting of minimum and additional terms is, however, available under s 13A of the Sentencing Act 1989 (NSW) which provides for the re-determination of life sentences handed down under the previous system.
9.3 In DP 33 the Commission favoured making generally available sentences which consist of a minimum term and an additional term for the remainder of the offender’s life. We considered that a prisoner who would otherwise have been sentenced to natural life might benefit from the possibility of being released on parole at some time.7 This proposal was generally supported.8
9.4 The Senior Public Defender supported the availability of a life sentence as an additional term as being entirely consistent with the concept of truth in sentencing, and in particular as being useful for cases in the worst category of case where it cannot be said there are no prospects of rehabilitation. He noted that in most cases involving s 13A re-determinations of life sentences there had been evidence of significant rehabilitation by offenders, even in cases where it had been said at the initial sentencing that the offender would remain forever a danger to the community.9 It was, however, suggested that the introduction of life sentences as additional terms must lead to the extension of the availability of s 13A re-determinations to life sentences passed so far under s 19A of the Crimes Act 1900 (NSW).10 The Commission sees no reason why this should be inevitable.
9.5 The Department of Corrective Services raised the issue of parole supervision once an offender is released during an additional term of life.11 At present parole supervision cannot exceed three years,12 however the Commission now recommends that regulations should permit the Parole Board to order a period of supervision longer than three years.13 It should be noted that, while parole does not always involve direct and continuing supervision, the offender continues to be subject to revocation of parole throughout the remainder of the sentence for conduct which breaches a term or condition of parole, but which does not necessarily amount to the commission of an offence.
9.6 While the Commission continues to support the substance of the original proposal that judges should have the discretion to impose a minimum term of imprisonment with an additional term of life at the initial sentencing hearing, we have reworded our proposal to accord with Recommendation 42 which states that s 5(1) of the Sentencing Act 1989 (NSW) should be amended to require the Court to set a sentence, and then to set a minimum term as the period during which the prisoner is not eligible for release on parole. Accordingly we recommend that a court should have the discretion, when imposing a life sentence, to determine the sentence with a minimum term.
MANDATORY LIFE SENTENCES
9.7 The Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW) received assent on 21 May 1996 and commenced on 30 June 1996. The Act has the effect of inserting into the Crimes Act 1900 (NSW) s 431B which imposes a mandatory minimum sentence of life imprisonment on offenders convicted of certain offences.
9.8 Section 431B(1) of the Crimes Act 1900 (NSW) makes provision for mandatory life sentences to be imposed on offenders convicted of murder in certain circumstances:
A court is to impose a sentence of penal servitude for life on a person who is convicted of murder, if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.
9.9 Section 431B(2) deals with offences involving the trafficking of commercial quantities of drugs. A court must impose a sentence of life imprisonment:
... if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence and the court is also satisfied that:
(a) the offence involved:
(i) a high degree of planning and organisation, and
(ii) the use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and
(b) the person was solely or principally responsible for planning, organising and financing the offence, and
(c) the heroin or cocaine was of a high degree of purity, and
(d) the person committed the offence solely for financial reward.
9.10 The final form of the Act differed significantly in some technical aspects from the provisions of the Crimes Amendment (Mandatory Life Sentences) Bill 1995 which the Commission considered in DP 33. These changes have not affected the Commission’s in principle objection to mandatory life sentences.
9.11 In DP 33 the Commission objected to mandatory life sentences in principle as they constitute the most extreme form of mandatory minimum sentence. Mandatory minimum sentences are undesirable because they apply without regard to undoubtedly relevant circumstances of a case with consequent arbitrary and capricious results. Being in effect a sentence passed by Parliament, mandatory minimum sentences remove judicial discretion and amount to an unwarranted intrusion on judicial independence.14 Objections were also raised on practical grounds. It was considered that mandatory life sentences would adversely affect the efficiency of the criminal justice system in as much as offenders would be less willing to plead guilty to offences which carry a mandatory life sentence.15
9.12 Another objection to s 431B is that it requires that the tribunal of fact decide matters which would otherwise be relevant to the sentencing discretion, and which the sentencing court would consider in the normal course of events. This crosses the dividing line between the roles of judge and jury. This is most obvious in respect of s 431B(2) where the specified circumstances of which the court must be satisfied will probably have to be alleged in the indictment and the jury’s verdict taken in respect of each.16 The argument may also be made with less force in respect of s 431B(1) if the tribunal of fact were to be required to determine the level of culpability. If either of the subsections of s 431B is to be retained, it must be made clear that the circumstances outlined are for the sentencing court to consider and determine and do not require proof in the trial and determination by a judge or jury as the tribunal of fact.
9.13 Even if s 431B merely codifies the existing law, the Commission does not consider that this is desirable in that it may needlessly restrict the ability of the common law of sentencing to develop in ways that might be considered appropriate in future.
9.14 Another objection raised in DP 33 was that the form of s 431B of the Crimes Act 1900 (NSW) as originally proposed might have been in conflict with Article 37 of the Convention on the Rights of the Child 1989, which, at the very least, requires a minimum term to be imposed as part of a life sentence with respect to offenders under the age of 18.17 Provision is now made in subsection (6) that the section does not apply to a person under the age of 18 at the time of committing the offence.18
9.15 In addition to the objections of principle listed above, we also have specific concerns about the utility of various provisions in s 431B:
- Section 431B(1) is strictly unnecessary. It adds nothing to the law as it currently stands, and the discretion to impose a sentence less than life for murder is expressly preserved in any case.19
- Section 431B(2), in requiring that the court be satisfied of the listed criteria, will have a considerable impact on the length of trials and will create serious logistical difficulties for the prosecution. It is most unlikely, therefore, that the prosecution will seek to use the provision.
- Although s 431B(5), in stating that nothing in subsection (2) derogates from the court’s discretion to impose a sentence of life imprisonment on a person convicted of trafficking in commercial quantities of drugs, has overcome a problem identified with s 431B(2) as originally proposed,20 it has the effect of rendering the provision useless.
9.16 The majority of submissions which considered the issue supported the Commission’s rejection of mandatory life sentences.21 Only one submission thought that there were cases where mandatory life sentences should be imposed.22 In light of the objections in principle to such legislation, and with the support of the overwhelming majority of submissions on the issue, the Commission recommends that s 431B be repealed.
9.17 The Chairman of the Commission is in complete agreement with the other members of the Commission in their rejection of the concept of mandatory sentences as being offensive to the principles of judicial independence and individual justice which are fundamental to the rule of law. However, he is of the view that s 431B does not breach these principles. Section 431B(1) is essentially a restatement of the common law concerning imposition of maximum penalties. In his opinion, legislation of this particular kind does not constitute an inappropriate interference either with judicial independence or judicial discretion, though perhaps its utility might be questioned. The Chairman considers that, accepting that there is a level of public controversy about sentencing policies, even though mostly ill-informed, the express adoption by the Legislature of fundamental principles of justice, as enunciated by the Courts, may well serve a useful purpose. Accordingly, he thinks that, considered alone, s 431B(1) is a justifiable and appropriate provision. However, the Chairman is at one with the other members of the Commission in his concern that legislation of this kind should not operate as a kind of stalking horse for the imposition of mandatory minimum terms, such as has occurred federally and in a number of States in the United States. The Chairman agrees with the other members of the Commission that s 431B(2) creates unnecessary procedural complexities and, for that reason, supports its repeal.
RE-DETERMINATIONS UNDER SECTION 13A
9.18 Section 13A of the Sentencing Act 1989 (NSW) allows prisoners serving “existing life sentences” to apply to have their sentences re-determined by the Supreme Court. An existing life sentence, for the purposes of the section, is essentially a sentence of imprisonment for life other than one imposed under either s 19A of the Crimes Act 1900 (NSW) or s 33A of the Drug Misuse and Trafficking Act 1985 (NSW). In practical terms, the section extends to sentences of imprisonment for life handed down before the repeal of s 463 of the Crimes Act 1900 (NSW) under which release on licence was granted. The number of prisoners eligible to apply for a re-determination of sentence is, therefore, finite. Of the 257 prisoners who were eligible or will become eligible to apply for a determination under s 13A, 164 had received re-determined sentences as at 1 October 1996.23
9.19 Prisoners serving existing life sentences must have served at least eight years of their sentence before they are eligible to make an application for re-determination.24 The Supreme Court may, on such an application, decide to set both a minimum and additional term or decline to determine a minimum and additional term.25 The sentence comprising the minimum and additional terms, if set by the court, then replaces the original life sentence,26 and the minimum term is taken to have commenced on the date on which the original sentence commenced or the date on which the prisoner’s remand commenced.27
Matters to be taken into account when considering applications
9.20 Section 13A(9) sets out factors to which the Supreme Court must have regard when considering an application for re-determination:
(a) 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 1900 and of the practice relating to the issue of such licences; and
(b) any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person’s rehabilitation), being in either case reports made available to the Supreme Court; and
(c) any relevant comments made by the original sentencing court when imposing the sentence; and
(d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application),
and [the Supreme Court] may have regard to any other relevant matter.
9.21 Subsection (9) involves significant difficulties of interpretation,28 especially paragraph (a), since it is difficult to see what relevance the knowledge of the original sentencing judge of the then relevant release practices could have for a current re-determination.29 The decision in R v Crump30 shows a lack of uniform interpretation of the paragraph and a strong dissatisfaction with its drafting. The Commission, therefore, proposed the repeal of s 13A(9)(a).
9.22 The repeal of s 13A(9)(d) was also proposed because it referred to a matter which is already relevant to the court’s decision.
Section 13A(9)(a)
9.23 The Commission, while recognising the need for s 13A following the repeal of s 463 of the Crimes Act 1900 (NSW) and the cessation of the release on licence scheme, remains of the opinion that s 13A(9)(a) should be repealed, given the difficulty involved in its application. It is difficult to make relevant use of the knowledge of the original sentencing court for these reasons:
- For life sentences before 1982, life was the mandatory sentence for murder and this meant that the question of release on licence could never be a consideration for the original sentencing judge.
- For life sentences both before and after 1982, the practice of release on licence is not comparable with the fixing of a sentence with a minimum term at the end of which the prisoner becomes eligible for release on parole.31
9.24 In recommending the repeal of s 13A(9)(a), the Commission considers that the provision can be adequately replaced by the fixing of a sentence according to general principles, with the benefit of hindsight, which is what occurs now when any other sentence is re-determined. This includes going back to the level of sentencing at the time of the original imposition where it is possible to do so.32
9.25 Several submissions supported the Commission’s proposal to repeal s 13A(9)(a).33 However, two submissions did not support the repeal on the grounds that the expectation of release on licence within a certain time should be taken into account.34 One suggestion was that s 13A(9)(a) should be amended and retained to remind judges that there was an expectation of release on licence, so that the court would be required to have regard to:
(a) the knowledge that the person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences.35
We do not endorse this approach because the argument, that release on licence is not comparable with a system of setting a sentence with a minimum term, applies notwithstanding the suggested rewording.
Section 13A(9)(d)
9.26 While most submissions agreed that s 13A(9)(d) did not add anything to the law as it currently stands, some did not support its repeal.36 The Director of Public Prosecutions did not support the repeal of s 13A(9)(d) on the grounds that the Parliament, in introducing the provision,37 was “of the opinion that giving legislative imprimatur to the common law practice of having regard to the age of offenders applying for re-determination of their life sentences was the appropriate course of action to take”.38
9.27 The Commission recognises that, while s 13A(9)(d) does not add to the law as it currently stands, it does nothing to derogate from it. The repeal of s 13A(9)(d) is accordingly not necessary and the Commission makes no recommendation concerning it.
Commencement of minimum terms
Recommendation 50
Section 13A(5) of the Sentencing Act 1989 (NSW) should be amended to provide that a minimum term set under the section is to commence on the date which the court, in its discretion, determines, according to the justice of the case.
9.28 Section 13A(5) of the Sentencing Act 1989 (NSW) makes the following provision with respect to the commencement of a minimum term which has been set at a re-determination hearing:
A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced.
9.29 The Discussion Paper noted Justice Hunt’s observation at first instance in R v Purdey39 that the provision, as it stands, is inadequate because it fails to account for situations where a life sentence was imposed upon a prisoner already serving a sentence for another offence.40 A cumulative sentence, which takes into account the totality of the criminality involved and would normally have been imposed in such a circumstance, under the current system, cannot be imposed by the re-determining judge under s 13A(5) if such a sentence had not been imposed by the original sentencing judge. The Commission proposed the amendment of s 13A(5) to take account of these criticisms.41
9.30 While the second option in s 13A(5) assumes that a re-determined sentence should be backdated to cover the period the offender spends in custody prior to sentencing, and judges will usually backdate a sentence in these circumstances, a sentencing judge may exercise a discretion not to.42 An appeal to the Court of Criminal Appeal in Purdey43 has also highlighted some other problems with s 13A(5) in failing to deal adequately with the issue of backdating sentences. Particular problems were noted with the phrase “remanded in custody for the offence”. Two judges held that this phrase only applied where the offender’s remand in custody was for the particular offence in question, and not where the offender was already in custody for other offences.44 Chief Justice Gleeson further construed s 13A(5) as giving the judge a choice even if the second of the two options could be exercised.45 Clearly Justice Carruthers46 did not agree, stating that the second option was exclusive once the criteria were satisfied. He also noted that the Legislature would have enacted a provision similar to s 24(1)(a)(ii) of the Probation and Parole Act 1983 (NSW) which referred to a person being in custody “by reason of the offence to which the sentence relates” if its intention was that the period in custody relate solely to the particular offence. The interpretation of s 13A(5) is not settled, and submissions were made on this point in addition to those in relation to cumulative sentences which were raised in the Discussion Paper.
9.31 With respect to the matters raised in the Court of Criminal Appeal, the Senior Public Defender submitted that the mandatory commencement date for re-determined sentences should be the date on which a prisoner was arrested for the offence, assuming bail was refused, regardless of there being other offences for which he or she was arrested or for which the offender was already serving a sentence of imprisonment. He also recognised that legislative amendment would be required to take account of situations where sentences were being served in addition to the life term and it was necessary that the principle of totality be taken into account.47 Another suggestion was that s 13A(5) be redrafted so that the re-determined sentence commences when the offender was remanded in custody for the offence, even if there were other reasons for remand.48
9.32 The Commission has concluded that the commencement date should be fixed in the discretion of the sentencing court. In exercising its discretion, the court should have regard, by analogy, to the common law principles relating to the backdating of sentences of imprisonment. Justice Badgery-Parker has said:
It needs, I think, to be emphasised that, unless there is good reason to the contrary, it is always desirable that a sentencing judge should not only take into account pre-sentence custody in determining the sentence to be imposed but should backdate the sentence to the commencement of that pre-sentence custody. ... If for some such reason, a sentencing judge chooses not to backdate a sentence, then it is desirable that he should expressly state that he is not doing so, and should clearly state his reasons for not doing so.49
The Commission sees no reason why this principle should not generally apply to s 13A re-determinations and accordingly recommends that s 13A(5) of the Sentencing Act 1989 (NSW) be amended to provide that a minimum term is to commence on the date which the Court, in its discretion, determines according to the justice of the case.
9.33 The proposed amendment to s 13A(5) allows that, where other sentences are imposed at the same time, or are already being served, the court can, in its discretion, fix the re-determined sentence to be cumulative, concurrent, or partly concurrent with the other sentences and fix the commencement date for the re-determined sentence accordingly.
Restrictions upon application for re-determination of life sentences
9.34 Under s 13A(8) of the Sentencing Act 1989 (NSW) the Supreme Court has the power to prevent further applications for re-determination of a sentence of life imprisonment:
9.35 The effect of an order under s 13A(8)(a) is that the prisoner must serve the remainder of the existing life sentence “for the term of the prisoner’s natural life”.50 If the Court declines to make a decision under s 13A(8) the prisoner may not re-apply within a period of two years from the date of the decision. Under s 13A(8C), the Court may direct that a prisoner never re-apply or not re-apply for a period of more than two years only if:
No orders have yet been made under s 13A(8)(a) directing that a prisoner may never re-apply for a determination under s 13A.51
9.36 The Discussion Paper52 noted concerns that s 13A re-determinations would have the practical effect, in some cases, of imposing a heavier penalty than that which was available at the time the offence was committed.53 This was because under the previous system, the prospect of release on licence meant that, in effect, an “indeterminate” life sentence was imposed, as opposed to what is, in effect, a “natural life” sentence imposed by the declaration that release will never again be considered. However, it was also noted that the possibility of release remains with the Royal prerogative of mercy.54
9.37 The Commission, in proposing that s 13A(8)(a), and in turn s 13A(8A), should be repealed and that consequential amendments be made to s 13A(8C) and s 13A(12), was of the view that an order that a prisoner never re-apply for a determinate sentence effectively dismisses any hope of rehabilitation and provides the prisoner with no incentive to reform and amounts effectively to an increase in the severity of the original sentence. The Commission also proposed that s 13A(8)(b) be amended to allow the Supreme Court to direct that an applicant may not re-apply for a period of up to ten years.55
9.38 Submissions agreed that s 13A(8)(a) should be repealed so that the court cannot direct that a person never re-apply under s 13A.56 However, some concern was expressed that the proposed ten year maximum within which an applicant may not re-apply for a re-determination was too long.57 It was generally felt that a shorter period was more appropriate. The New South Wales Council for Civil Liberties submitted that the period should be no more than two years,58 while two other submission suggested that the period should be for no more than five years.59
9.39 Another submission, in supporting the ten year period, proposed that the time should run from the date of the prisoner’s application as it is not uncommon for up to two years to elapse between application and re-determination because of the time it takes the Serious Offenders Review Council to prepare its reports. In the alternative, it was suggested that an eight year period from the date of the determination of the first application might be appropriate as being consistent with the requirement that eight years be served before the first application can be made.60
9.40 The Commission has received no convincing arguments for the retention of s 13A(8)(a) and, given the practical effect it may have of imposing a natural life sentence where only an indeterminate life sentence was previously available, recommends its repeal as a matter of fundamental principle. The Commission acknowledges the concerns raised as to the length of the proposed period during which a prisoner may not re-apply, and accordingly recommends that s 13A(8)(b) be amended to allow the Supreme Court to direct that an applicant may not re-apply for a period of up to five years from the date of making the instant application.
FOOTNOTES
1. Crimes Act 1900 (NSW) s 19A.
2. Drug Misuse and Trafficking Act 1985 (NSW) s 33A.
3. Crimes Act 1900 (NSW) s 19A(3); Drug Misuse and Trafficking Act 1985 (NSW) s 33A(2).
4. Crimes Act 1900 (NSW) s 19A(2); Drug Misuse and Trafficking Act 1985 (NSW) s 33A(1).
5. Sentencing Act 1989 (NSW) s 13(c).
6. Sentencing Act 1989 (NSW) s 25A(6) and 53; Crimes Act 1900 (NSW) s 19A(6).
7. DP 33 at paras 4.88-4.89.
8. N R Cowdery, Submission (17 June 1996) at 7; Department of Corrective Services, Submission (15 July 1996) at 10; Legal Aid Commission of NSW, Submission (18 July 1996) at 5; Law Society of NSW, Submission (19 July 1996) at 10; W D T Ward, Submission (25 July 1996) at 4; Confidential, Submission (22 May 1996) at 16; S Odgers, Submission (7 June 1996) at 2; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 6.
9. M L Sides and Bar Association, Submission (24 June 1996) at 21-22.
10. M L Sides and Bar Association, Submission (24 June 1996) at 23.
11. Department of Corrective Services, Submission (15 July 1996) at 10.
12. Sentencing (General) Regulation 1996 (NSW) cl 10(4).
13. Recommendation 72.
14. See the discussion in New South Wales, Legislative Council, Standing Committee on Law and Justice, Report on the Crimes Amendment (Mandatory Life Sentences) Bill 1995 (November 1995) at 7-9. See also L Blom-Cooper and T Morris, “The Penalty for Murder: A Myth Exploded” [1996] Criminal Law Review 707.
15. DP 33 at para 4.76.
16. See Kingswell v The Queen (1985) 159 CLR 264 at 281.
17. DP 33 at para 4.76.
18. This provision was included in response to the Report of the Standing Committee on Law and Justice: New South Wales, Parliamentary Debates (Hansard) Legislative Council, 17 April 1996, the Hon J W Shaw QC, Second Reading Speech at 84.
19. Crimes Act 1900 (NSW) s 431B(3) which preserves s 442.
20. The problem with s 431B(2) as originally proposed was that the gravity of conduct required to satisfy the conditions in s 431B(2) was exceptionally high and that there was a danger that, if the section came to be treated as a code, it might be harder to impose a sentence on an offender whose circumstances did not fall precisely within the requirements but who would otherwise have been deserving of a sentence of life imprisonment: DP 33 at para 4.75.
21. M L Sides and Bar Association, Submission (24 June 1996) at 19-20; N R Cowdery, Submission (17 June 1996) at 6; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 6; Confidential, Submission (22 May 1996) at 16; NSW Council for Civil Liberties, Submission (1 July 1996) at 3; Justice Action, Submission (2 July 1996) at 3.
22. W D T Ward, Submission (25 July 1996) at 4.
23. Data provided by the Office of the Director of Public Prosecutions, 18 October 1996.
24. Sentencing Act 1989 (NSW) s 13A(3).
25. Sentencing Act 1989 (NSW) s 13A(4).
26. Sentencing Act 1989 (NSW) s 13A(6).
27. Sentencing Act 1989 (NSW) s 13A(5).
28. DP 33 at paras 4.84-4.86.
29. See especially comments of Hunt CJ at CL in R v Purdey (1992) 65 A Crim R 441 at 444; and R v Crump (NSW CCA, No 60080/93, 30 May 1994, unreported) at 9. The High Court refused leave to appeal in the matter of Crump because there was no precise counterpart to s 13A of the Sentencing Act 1989 in other States, the appeal raised no general principle of statutory construction, and the interpretation of s 13A was a problem properly to be resolved by the courts of New South Wales: Crump v The Queen (1995) 69 ALJR 570.
30. NSW CCA, No 60080/93, 30 May 1994, unreported.
31. Crump (NSW CCA) at 12 per Hunt CJ at CL.
32. R v Shore (1992) 66 A Crim R 37.
33. N R Cowdery, Submission (17 June 1996) at 6; Legal Aid Commission of NSW, Submission (18 July 1996) at 5; Confidential, Submission (22 May 1996) at 16; Department of Corrective Services, Submission (15 July 1996) at 10; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 6; W D T Ward, Submission (25 July 1996) at 4.
34. M L Sides and Bar Association, Submission (24 June 1996) at 20-21; Law Society of NSW, Submission (19 July 1996) at 9.
35. Law Society of NSW, Submission (19 July 1996) at 9.
36. Legal Aid Commission of NSW, Submission (18 July 1996) at 5; Law Society of NSW, Submission (19 July 1996) at 9.
37. Sentencing (Life Sentences) Amendment Act 1993 (NSW).
38. N R Cowdery, Submission (17 June 1996) at 7.
39. (1992) 65 A Crim R 441 at 446.
40. Under the former system, when imposing a sentence of life imprisonment together with other lesser sentences, the courts were merely imposing a life sentence which subsumed the lesser sentences. The question of accumulation was, therefore, irrelevant and the life sentence was taken to have commenced from the date of imposition. However, different considerations must pertain when a sentence less than a natural life sentence is being fixed for the murder.
41. DP 33 at para 4.91.
42. R v Purdey (1992) 65 A Crim R 441 at 447.
43. R v Purdey (1993) 31 NSWLR 668.
44. R v Purdey (1993) 31 NSWLR 668 at 669 per Gleeson CJ, at 671-673 per Mahoney JA.
45. R v Purdey (1993) 31 NSWLR 668 at 669 per Gleeson CJ.
46. R v Purdey (1993) 31 NSWLR 668 at 676-677 per Carruthers J.
47. M L Sides and Bar Association, Submission (24 June 1996) at 23-24.
48. Legal Aid Commission of NSW, Submission (18 July 1996) at 6. See also Law Society of NSW, Submission (19 July 1996) at 10.
49. R v Deeble (NSW CCA, No 60047/91, 19 September 1991, unreported) at 3.
50. Sentencing Act 1989 (NSW) s 13A(8A).
51. Data provided by Office of the Director of Public Prosecutions, 18 October 1996. An application for an order was made on 29 November 1996 in R v Kalajzich, but has not yet been decided.
52. DP 33 at paras 4.94-4.95.
53. Arguably in breach of Article 15.1 of the International Covenant on Civil and Political Rights 1966.
54. Sentencing Act 1989 (NSW) s 53.
55. DP 33 at para 4.96.
56. NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 6; Legal Aid Commission of NSW, Submission (18 July 1996) at 6; Law Society of NSW, Submission (19 July 1996) at 10; NSW Council for Civil Liberties, Submission (28 June 1996) at 3; Justice Action, Submission (2 July 1996) at 3; Department of Corrective Services, Submission (15 July 1996) at 11; W D T Ward, Submission (25 July 1996) at 4; Confidential, Submission (22 May 1996) at 16; N R Cowdery, Submission (17 June 1996) at 7; M L Sides and Bar Association, Submission (24 June 1996) at 24.
57. Confidential, Submission (22 May 1996) at 16; N R Cowdery, Submission (17 June 1996) at 7; NSW Council for Civil Liberties, Submission (28 June 1996) at 1 and 3; Justice Action, Submission (2 July 1996) at 1 and 3; Legal Aid Commission of NSW, Submission (18 July 1996) at 7; Law Society of NSW, Submission (19 July 1996) at 11.
58. NSW Council for Civil Liberties, Submission (28 June 1996) at 3; Justice Action, Submission (2 July 1996) at 3.
59. Legal Aid Commission of NSW, Submission (18 July 1996) at 6; Law Society of NSW, Submission (19 July 1996) at 10.
60. M L Sides and Bar Association, Submission (24 June 1996) at 24-25.
