FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
KEVIN GARRY CRUMP PLAINTIFF
AND
STATE OF NEW SOUTH WALES & ANOR DEFENDANTS
Crump v New South Wales
[2012] HCA 20
4 May 2012
S165/2011
ORDER
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.
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))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
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 Act1989 (NSW) is a "matter" within s 73 of Constitution – Whether s 154A of Crimes (Administration of Sentences) Act1999 (NSW) invalid for setting aside, varying, altering or otherwise stultifying a judgment, decree, order or sentence of Ch III court.
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…
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.
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Details
AGLC
Crump v New South Wales [2012] HCA 20
Case
[2012] HCA 20
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a special case concerning the validity of certain New South Wales legislation in relation to the plaintiff, Crump. The dispute centred on whether provisions of the *Crimes (Administration of Sentences) Act 1999* (NSW) and the *Sentencing Act 1989* (NSW) impermissibly interfered with judgments of the Supreme Court of New South Wales, thereby infringing Chapter III of the Commonwealth Constitution.
The legal issues before the Court were whether a determination made under s 13A of the *Sentencing Act 1989* (NSW) constituted a "matter" within the meaning of s 73 of the Constitution, and whether s 154A of the *Crimes (Administration of Sentences) Act 1999* (NSW) was invalid for having the effect of setting aside, varying, altering, or otherwise stultifying a judgment, decree, order, or sentence of a Chapter III court.
The Court reasoned that the sentence imposed by the Supreme Court on 20 June 1974, a sentence of imprisonment for life, was not altered by subsequent legislative changes concerning the executive determination of parole. The Court noted that the power to impose sentence was exhausted upon its imposition, and the subsequent executive decision regarding release on parole did not make the original sentence more punitive. Applying this principle, the Court concluded that s 154A of the *Crimes (Administration of Sentences) Act 1999* (NSW) did not vary or alter the resentencing decision made by McInerney J.
The High Court answered the questions in the special case. It held that s 154A of the *Crimes (Administration of Sentences) Act 1999* (NSW), in its purported application to the plaintiff, was not invalid for 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. Consequently, there was no order as to the costs of the special case.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
HEYDON J
McInerney J did not and would not have been entitled to base his resentencing decision upon any assumptions about the continuity of statutory arrangements then in existence for executive determination of release of the plaintiff on parole. Section 154A did not vary or alter the resentencing decision made on 24 April 1997.Conclusion For the preceding reasons the questions in the special case should be answered as proposed in the joint judgment. On 20 June 1974, following a trial in the Supreme Court of New South Wales, the plaintiff and his co‑accused, Allan Baker, were convicted of the murder of Mr Ian James Lamb and for conspiring to murder Mrs Virginia Gai Morse. The conspiracy had been carried into effect by the abduction of Mrs Morse from her home in the north west of New South Wales and her murder in Queensland. Crump and Baker were sentenced to imprisonment for life and in his remarks on sentence Taylor J made strong statements to the effect that they should die in gaol. At this time, s 463 of the Crimes Act 1900 (NSW) conferred upon the Governor a power of release on licence. Of that system, in Baker v The Queen[86], McHugh, Gummow, Hayne and Heydon JJ said:"Whilst s 463 remained in force, the judicial power to impose sentence upon a person convicted of murder was confined: the only sentence that could be passed was that the offender suffer penal servitude for life. Upon passing that sentence the judicial power was exhausted. Whether the offender served the sentence in prison or at large was a matter which then was to be decided by the Executive, not a court. If the Executive exercised the power given by s 463, the offender obtained a mercy. But in no sense (whether as a matter of substance or as a matter of form) can later legislation, altering the circumstances in which such mercy could or would be extended to a prisoner sentenced to life imprisonment, make that sentence of life imprisonment more punitive or burdensome to liberty."[86](2004) 223 CLR 513 at 528 [29]; [2004] HCA 45. Under this system, and the present parole system, it could not be said, as it has been said of systems in other jurisdictions[87], that the sentence is determined not in the exercise of judicial power, but by the executive branch of government.[87]Browne v The Queen [2000] 1 AC 45 at 48‑49. The Privy Council held that under the Constitution of St Christopher and Nevis the selection of a sentence is an integral part of the administration of justice which cannot be committed to the executive and held invalid a law which required a court to impose a sentence of detention at the pleasure of the executive. Subsequently, the Sentencing Act 1989 (NSW) ("the 1989 Act") 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 (then constituted by s 44 as the Offenders Review Board) in respect of prisoners who had served their minimum term. In 1992 the plaintiff applied to the Supreme Court for a determination by it of a minimum term to be served and an additional term during which he might be released on parole by the parole authority. The jurisdiction of the Supreme Court which the plaintiff invoked was conferred by s 13A of the 1989 Act, which, with effect as of 12 January 1990, had been added to the 1989 Act by the Sentencing (Life Sentences) Amendment Act 1989 (NSW).
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ,
HEYDON J