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Crump v R

Crump v R

Case [2016] NSWCCA 2 5 February 2016

Criminal Liability

Sentencing

Statutory Interpretation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Crump v R [2016] NSWCCA 2
Hearing dates: 4 November 2015
Decision date: 05 February 2016
Before: Meagher JA at [1];
Rothman J at [79];
Bellew J at [80]
Decision:
1. Extend the time for the applicant to apply for leave to appeal up to and including 23 April 2015.
2. Dismiss the application for leave to appeal from the determination of McInerney J of 24 April 1997.

Catchwords: CRIMINAL LAW – sentence – applicant convicted of murder and sentenced to life imprisonment in 1974 – existing life sentence determined in 1997 under s 13A of Sentencing Act 1989 (NSW) as minimum term of 30 years imprisonment and additional term for remainder of applicant’s natural life – application for leave to appeal against that determination – whether determination of the minimum and additional term of life was excessive – whether appropriate to consider overall criminality of other offences for which offender sentenced, and to be punished, when determining sentence under s 13A – whether Court of Criminal Appeal’s power under Criminal Appeal Act 1912 (NSW), s 6(3) to re-determine sentence of an offender subject to a non-release recommendation restricted by Sch 1, cl 4(3) of Crimes (Sentencing Procedure) Act 1999 (NSW)
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 19, 463
Crimes (Administration of Sentences) Act 1999 (NSW), s 154A
Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), Sch 1, Sch 2
Criminal Appeal Act 1912 (NSW), ss 5, 6,10
Sentencing Act 1989 (NSW), s 13A
Sentencing (Life Sentences) Amendment Act 1989 (NSW)
Sentencing Legislation Further Amendment Act 1997 (NSW), Sch 1, cl 3
Cases Cited: Baker v The Queen [2004] HCA 45; 223 CLR 513
Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284
Crump v New South Wales [2012] HCA 20; 247 CLR 1
Fenech (Supreme Court (NSW), Barr J, 4 September 1997, unrep)
Gallo v Dawson [1990] HCA 30; 64 ALJR 458
Hoare v The Queen [1989] HCA 33; 167 CLR 348
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Mill v The Queen [1988] HCA 70; 166 CLR 59
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Cousens [2011] NSWSC 1375
R v Faulkner (1972) 56 Cr App R 594
R v Hill [2003] NSWCCA 128
R v Maiden [2000] NSWCCA 519
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Picknell (Supreme Court (NSW), Wood CJ at CL, 10 November 1998, unrep)
R v Purdey (1992) 65 A Crim R 441
R v Purdey (1993) 31 NSWLR 668
R v Salameh [1999] NSWCCA 300
R v Valiukas [2009] NSWSC 808
Radenkovic v The Queen [1990] HCA 54; 170 CLR 623
Spinks v R (Court of Criminal Appeal (NSW), 7 August 1997, unrep)

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 Crump v R

Details

AGLC: Crump v The Queen [2016] NSWCCA 2
Case: [2016] NSWCCA 2
Decision Date: 05 February 2016

CaseChat Overview and Summary

In the case of Crump v R, the applicant, Crump, sought leave to appeal against the determination of a minimum and additional term for his life sentence, which was imposed in 1974 for murder. The determination was made in 1997 under section 13A of the Sentencing Act 1989 (NSW), setting a minimum term of 30 years imprisonment and an additional term for the remainder of Crump's natural life. Crump argued that the determination was excessive and questioned the appropriateness of considering the overall criminality of other offences for which he was sentenced, and to be punished, when determining the sentence under section 13A. He also sought clarification on whether the Court of Criminal Appeal’s power to re-determine a sentence, as provided by section 6(3) of the Criminal Appeal Act 1912 (NSW), is restricted by clause 4(3) of Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The legal issues before the court involved the interpretation and application of section 13A of the Sentencing Act 1989, and the extent to which the Court of Criminal Appeal could consider the overall criminality of other offences when determining a sentence under that section. Additionally, the court had to determine whether the power to re-determine a sentence, as outlined in the Criminal Appeal Act 1912, is limited by clause 4(3) of Schedule 1 of the Crimes (Sentencing Procedure) Act 1999. The applicant argued that the determination of the minimum and additional term of his life sentence was excessive and that the court should consider the totality of the criminality involved in other offences. The respondent, the Crown, contended that the determination was appropriate and that the court should not consider the overall criminality of other offences when determining the sentence under section 13A.

The court considered the statutory provisions and the relevant legislative framework in reaching its decision. It held that the determination of the minimum and additional term of Crump's life sentence was not excessive, as the court had considered all relevant factors in accordance with the law. The court also determined that the overall criminality of other offences should be taken into account when determining a sentence under section 13A, as it provides a holistic view of the offender's criminal conduct. However, the court found that the Court of Criminal Appeal’s power to re-determine a sentence, as provided by section 6(3) of the Criminal Appeal Act 1912, is restricted by clause 4(3) of Schedule 1 of the Crimes (Sentencing Procedure) Act 1999. As a result, the court dismissed Crump's application for leave to appeal against the determination of his sentence.

The final orders of the court were that Crump's application for leave to appeal against the determination of his sentence was dismissed, and the original determination of the minimum and additional term of his life sentence remained in place. The court found that the determination was appropriate and that the Court of Criminal Appeal’s power to re-determine a sentence was limited by the provisions of the Crimes (Sentencing Procedure) Act 1999.

Orders