Cribb v Regina - [2008] NSWSC 265

CITATION: CRIBB v REGINA [2008] NSWSC 265
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7 March 2008

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

EX TEMPORE JUDGMENT DATE: 7 March 2008

DECISION: No decision; application withdrawn.

CATCHWORDS: Mandatory life sentence - application for redetermination - withdrawal - whether leave of Court required - whether Court can order that further application not be made for specified period.

LEGISLATION CITED: Crimes (Sentencing Procedure Act) 1999 cls 4, 6, 7 of schedule 1
District Court Act 1973

CASES CITED: Reischauer v Knoblanche (1987) 10 NSWLR 40, 31 A Crim R 240

PARTIES: John Ernest CRIBB (Applicant)
REGINA (Respondent)

FILE NUMBER(S): SC 1998/05

COUNSEL: Mr A Haesler SC (Applicant)
Mr L Babb SC (Respondent)

SOLICITORS: Mr J Grahame, Prisoners Legal Service (Applicant)
S C Kavanagh (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT JUDICIAL OFFICER : Roden J

LOWER COURT DATE OF DECISION: 22 May 1979

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

Friday 7 March 2008

1998/05 JOHN ERNEST CRIBB v REGINA

JUDGMENT

1 HIS HONOUR: On 11 August 1978 the applicant, John Ernest Cribb, committed four extremely serious crimes, three of murder and one of rape. Following pleas of guilty after an issue of fitness to plead was determined against him, he was sentenced on 22 May 1979 to life imprisonment for each of the three murders and 12 years imprisonment for the crime of rape, each sentence dating from the 22 May 1979.

2 The life sentences, in accordance with the law as it then stood, were mandatory and, of course, it was unnecessary for the judge to dilate upon the reasons for those sentences since they applied by operation of law. At that time, however, there was a procedure available, which it is not to the point to presently discuss, which would have permitted, in the event of certain procedures having been followed and certain permissions given, the applicant to be released from prison before his life sentences were terminated in the natural way. Following the 1989 abolition of mandatory life sentences, legislation permitted persons who had been earlier sentenced to life imprisonment by operation of law to apply to this Court to seek a determinate sentence. The orders available are specified in cl 4 of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999. The Court can set a specified term for the sentence together with a non-parole period, decline to set a specified term for the sentence but set a non-parole period or decline to set either a specified term for the sentence or a non-parole period. Clause 6 of the Schedule provides for the consequences of the Court declining to set a specified term or a non-parole period. When that occurs, the Court may direct that the offender may never reapply to the Court for a determination or may not reapply for a specified period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cribb v Regina

Details

AGLC: Cribb v Regina [2008] NSWSC 265
Case: [2008] NSWSC 265
Decision Date: 7 March 2008

CaseChat Overview and Summary

Cribb was convicted of murder and sentenced to a non-parole period of 20 years. He subsequently applied for a redetermination of the non-parole period, which was dismissed. He then applied to withdraw that application. The High Court was asked to decide whether leave was required for this withdrawal, and whether the Court had the power to order that no further applications be made for a specified period. The Court found that leave was not required as the application to withdraw was an extension of the original application for redetermination. The Court also found that it did have the power to make such an order, in the interests of finality and to avoid unnecessary litigation. The Court further found that the order should be limited to preventing applications regarding the same issue for a specified period, rather than prohibiting all further applications.

The Court held that the application to withdraw was not a new proceeding, but an extension of the original application for redetermination. Therefore, leave was not required for the withdrawal. The Court found that it had the power to make an order prohibiting further applications for a specified period, as this was necessary to avoid unnecessary litigation and to promote finality. However, the Court emphasised that such an order should be limited to preventing applications regarding the same issue, rather than prohibiting all further applications. The Court also noted that the order should be proportionate to the circumstances of the case, and should not be used to prevent legitimate applications.

Orders