R v Bednarz

[2000] NSWCCA 553

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:         R v Alexander [2000]  NSWCCA 553

FILE NUMBER(S):
60293/99

HEARING DATE(S):          12 July 2000

JUDGMENT DATE:           12/07/2000

PARTIES:
REGINA v Michael ALEXANDER

JUDGMENT OF: Meagher JA Grove J Bergin J   

LOWER COURT JURISDICTION:    Supreme Court

LOWER COURT FILE NUMBER(S):               L93/008

LOWER COURT JUDICIAL OFFICER:          Kirby J

COUNSEL:
Crown: L. Lamprati
Alexander: Self

SOLICITORS:
Crown: S E O'Connor
Alexander: Self

CATCHWORDS:
Sentence - remissions on sentence - life sentence.

LEGISLATION CITED:
s.13A Sentencing Act

DECISION:
1. Appeal dismissed.

JUDGMENT:

- 3 -

IN THE COURT OF
CRIMINAL APPEAL

CCA: 60293/99

MEAGHER JA

GROVE J
  BERGIN J

Wednesday, 12 July 2000

REGINA  v  Michael ALEXANDER

JUDGMENT

1. MEAGHER JA:  Mr Alexander is a gentleman who, in about 1985 or shortly before, came to Sydney from the country.  Through a church organisation he was introduced, in February 1985, to Mrs Kirk.  She was then a woman aged forty-two years who had been recently separated from her husband and who had the custody of her daughter Stephanie, then aged three years.  Mr Alexander reached an arrangement with Mrs Kirk whereby they would share premises and share the rent.

2. On 20 August 1985 there was an argument between Mr Alexander and Mrs Kirk concerning the rent, which was then in arrears.  Mr Alexander then went into the garage.  He obtained a length of electrical cord and returned to the kitchen.  He grabbed Mrs Kirk from behind and placed the cord around her neck, pulling it tight.  He thereby strangled her.

3. Having done that, he carried or dragged her body to the garage and was in the process of covering it with a curtain when Stephanie, the three year old daughter entered the garage.  He struck her with a piece of wood and then stabbed her to death. 

4. When his trial for, in effect, double murder came on before Slattery J, he was found guilty and sentenced to life imprisonment.

5. On 7 May 1999 his application under s.13A of the Sentencing Act was heard by Kirby J, who, with most extraordinary generosity, changed the life sentence into a minimum sentence of twenty-one years.  If there were any means whereby this Court could properly increase that sentence in the present application I would unhesitatingly be in favour of it.  However, we cannot.

6. Mr Alexander now has brought this application for the purpose of reducing still further the twenty-one years.  In this regard he asks this Court to correct what he regards as an error in the judgment of Kirby J, in that no consideration was given to the remissions to which he would have been entitled if his original sentence stood.

7. That is perfectly correct.  No deduction was made by Kirby J for those remissions, but for the very good reason that such remissions would not have existed.  Remissions were not given in respect of life sentences.  The application which Mr Alexander therefore makes to this Court must be dismissed.

8. GROVE J:  I agree that this application should be dismissed.  I would only add that it is clearly brought upon a misconception, which may have been encouraged by a letter to the appellant from the Serious Offenders Management Committee which made reference to taking remissions into account.

9. As the presiding judge has pointed out, remissions were not applicable to life sentences imposed prior to September 1989, when the Sentencing Act came into force, or indeed since that time.

10. Prisoners serving life sentences prior to 1989 were in fact released, but this was pursuant to the arrangement made for ticket of leave by the Governor in accordance with legislation then in force.

11. I agree with the order proposed.

12. BERGIN J:  I agree.

13. MEAGHER JA:  The order of the court therefore is the appeal is dismissed.

LAST UPDATED:              04/03/2001