Crump v The Queen

[1995] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S165 of 1994

B e t w e e n -

KEVIN CRUMP

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 MAY 1995, AT 10.09 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, QC:   May it please the Court, I appear with my learned friend, MR P.M. STRICKLAND for the applicant.   (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR R. KELEMAN:   May it please the Court, I appear for the respondent in this appeal.   (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Yes, Mr Hidden.

MR HIDDEN:   May it please the Court.  Your Honours, this application raises the interpretation of section 13A of the New South Wales Sentencing Act which was introduced in 1989.  At that time, the indeterminate sentence was abolished in New South Wales and thereafter sentences are now either for the term of the prisoner’s natural life or for a determined number of years.  Your Honours, as far as existing life sentenced prisoners are concerned, the legislation bears some similarities to the Victorian legislation which this Court considered in Bugmy v The Queen but there are, of course, some differences.

GUMMOW J:   The legislation has been amended in New South Wales, has it not?

MR HIDDEN:   It has, your Honour, yes.  In 1993 significant amendments were made.

GUMMOW J:   Since the time of the relevant events here?

MR HIDDEN:   Indeed, your Honour and in fact, if this applicant did reapply, as I understand he has, your Honour, he comes under the new system which carries certain jeopardies to which he was not subject at the time of this application.  Your Honours, it is perhaps of some significance to remember that section 13A, exceptionally now in New South Wales, empowers on a redetermination of sentence the specification of a minimum term of a number of years and an additional term of a prisoner’s life which cannot be done in any other circumstance now in New South Wales.

Now, what the application really raises, your Honours, is the question of what are the considerations at the stage of determining whether the application should be granted, as opposed to the considerations as determining what the sentence should be if it is.  It is clearly a two-stage process.  In short, your Honour, our submission is that both the primary judge and the majority of the Court of Criminal Appeal erred in their approach to that first stage of the process.  Indeed, your Honours, Mr Justice Hunt, who affirmed the primary judge’s decision on another basis but who was alone in that was, in our respectful submission, correct when he said, in effect, at the stage of whether an application should be granted a judge need not be satisfied that the prisoner is then suitable for release or will shortly be suitable for release. 

All he has to do is determine whether there ought be a minimum term specified.  That can be quite some distance in the future and in specifying that minimum term, he does not have to be assured of present eligibility for release, just as any judge in an ordinary sentencing exercise would not have to be satisfied of that before specifying a minimum term.

DAWSON J:   What principle does one apply?  This is rather like Justice Mahoney’s suggestion that it is a two-stage process.  First, you decide whether there should be a fixed sentence in place of an indeterminate sentence.

MR HIDDEN:   Indeed, your Honour.

DAWSON J:   Now, in considering that first question, what principles do you apply?

MR HIDDEN:   Well, your Honour, in our submission, the first principle one bears in mind is that, clearly, the intention of the legislature is, as far as possible, to bring all prisoners under the same system.  So that the intention of the legislature is to translate indeterminate sentenced prisoners into prisoners under the new minimum and additional term system so that, normally, the application should be granted and the prisoner brought under the new system.

DAWSON J:   That submission was rejected in the Court of Appeal.

MR HIDDEN:   It was, your Honour, although it must be said that in the decision of Reg v Cribb which is actually on our learned friend’s list and we had overlooked it, your Honour.  I do not think it is necessary to take your Honours to it;  it is an unreported decision of the Court of Criminal Appeal of 4 November 1994.  There, the Court held, in effect, that these applications should be granted unless the case is one of such grave criminality that for that reason, the prisoner should never be released.  In other words, unless it is one where the prisoner would never have been released in any event.  Whether that is a correct statement of the law perhaps is a question which might be reserved for another day, if it arises.  It does not arise on this application.

DAWSON J:   That was the principle that Justice Hunt applied.

MR HIDDEN:   Indeed, your Honour, yes, that is right.  And his Honour arrived at the decision but his Honour was alone in that.  This was such an extreme case.

DAWSON J:   His Honour Justice Mahoney may have employed that reasoning, but I am not sure.

MR HIDDEN:   With great respect, your Honours, nor are we.  But, it is sufficient to say that the majority of the Court found no error in the primary judge’s decision that the application was premature.  Now, in a sense, your Honours, I suppose we are saying no application is premature unless the case is one of those hopefully extremely rare cases where the prisoner ought never be released.  In other words, where his criminality is such that, having regard to the protection of society, he should never get out.  And that is an extremely rare situation, one which we hope would hardly ever arise.  Unless the case is one of those, the judge under the application ought grasp the nettle and deal with it.

BRENNAN CJ:   Well, Mr Hidden, why should this Court go grasping any nettles in relation to this area?

MR HIDDEN:   Because, your Honour, in our submission, there is a question of principle to be considered in dealing with these applications.

BRENNAN CJ:   No doubt there is.

MR HIDDEN:   These applications are admittedly of a special nature and affect a limited number of prisoners.

BRENNAN CJ:   No doubt that is so.

MR HIDDEN:   And that is perhaps the matter to which your Honour is directing our attention.

BRENNAN CJ:   Well, I am directing your attention basically to the notion that it involves the application of a particular section of a State’s statute relating to the imprisonment of prisoners who have been correctly sentenced under the existing law to life imprisonment.  I find it difficult to transmogrify that issue, that problem, into one that ought to attract the attention of this Court, as distinct from the New South Wales Court of Criminal Appeal.

MR HIDDEN:   Well, your Honours, I suppose to an extent it does raise the question generally in sentencing of the extent to which the likelihood of a prisoner remaining a continuing danger to society bears on the specification of a minimum term, as opposed to the total sentence.

BRENNAN CJ:   Well, you have cases dealing with that already.

MR HIDDEN:   Indeed, we have, indeed, including Bugmy.

DAWSON J:   This Court set its face against taking on cases in regard to sentencing.  From 1903 to 1970, they did not deal with sentencing at all, never dealt with it.

MR HIDDEN:   I am aware of that, your Honours.  I suppose all we can say is none the less, the legislation is legislation affecting the longest serving prisoners in the State of New South Wales and in the instant case, in our respectful submission, there has been a miscarriage of justice such as ought invite the intervention of this Court, particularly as any fresh application by Mr Crump will bring him under the amended legislation whereby he is in jeopardy of a judge either telling him never to come back, in which case he is a natural life prisoner ‑ ‑ ‑

DAWSON J:   Well, he was in jeopardy, was he not, in this application, or was ‑ ‑ ‑

MR HIDDEN:   Well, no, your Honour, because even if one took the view which Mr Justice Hunt did, that his criminality was so grave that he should not be released, all the Court could do at that stage was refuse his application but he had a right to come back in two years.

DAWSON J:   I see, yes, I was wrong.

MR HIDDEN:   And indeed, I am given to understand recently he has done that, he has actually put on a new application.

DAWSON J:   On the other hand, some of the amendments are to his advantage, taking into account his age.

MR HIDDEN:   Yes, quite so, quite so.  But, certainly he is now in jeopardy of being told never to come back and, of course, your Honours, if that happens, a sentence which, when it was passed, was one which gave him no right to release is translated into one in which he has no hope of release.  There is a very real difference if that happens.  But, quite apart from that, the date on which he might make a further application can be postponed well beyond two years under the new system.  So that, your Honours, much hangs on this application for him and, in our submission, there has been a miscarriage of justice because the application of the wrong approach to section 13A has denied him the opportunity, before Justice Loveday, to have a minimum term and an eligibility for parole. 

He is now in jeopardy if he comes back in the light of a new system and for that reason, your Honours, and for the reason that this legislation, rather special as it is, affects very, very long-serving prisoners in a State of this nation and we submit that the matter is an appropriate one for the grant of special leave.  But, apart from that, your Honours, I apprehend that the point really is a simple one and that is that, generally speaking, in applications of this kind, the specification of a minimum term should not be denied because the prisoner’s prospects of rehabilitation are not immediately ascertainable or because he is not, in the near future, clearly ready for release.

That should not prevent the specification of a minimum term which ought be specified in accordance with all the usual principles of setting a minimum term and then, of course, in due course when that eligibility date arises, the board or the executive still has the ultimate responsibility of determining whether he is released.  Society is protected, the continuing protection of society is ensured by the additional term which can, under this section, be the rest of his life.

BRENNAN CJ:   If this application involved a determination that he should never be eligible to apply again, then you would have the situation where the applicant had had his sentence transformed from one with a hope ‑ as you say ‑ of release, to one where there was no hope of release.  That would substantially affect his rights.

MR HIDDEN:   Oh, indeed.

BRENNAN CJ:   One cannot postulate that of the existing decision.

MR HIDDEN:   I appreciate that, your Honour, I appreciate that.

BRENNAN CJ:   And one might think that the occasions when a court, whether a single judge of a court of criminal appeal, would make an order that no application could ever be made again would be extremely rare.

MR HIDDEN:   Your Honours, I do not believe we can be of any further assistance to the Court.  May it please Your Honours.

BRENNAN CJ:   We need not trouble you, Mr Keleman.

(Reasons for refusal of application for special leave to appeal were delivered)

BRENNAN CJ:   For that reason special leave must be refused.

AT 10.23 AM THE MATTER WAS CONCLUDED