R v Main - [2008] NSWSC 692

CITATION: R v MAIN [2008] NSWSC 692
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 March 2008

JUDGMENT DATE :
4 July 2008

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: First offence: The applicant is sentenced to a term of twenty-five years and two months’ imprisonment to commence 29 June 1983 and ending 28 August 2008 with a non-parole period commencing on 29 June 1983 and ending on 4 July 2008.
Second offence: The applicant is sentenced to a term of twenty-six years ending on 28 June 2009 with a non-parole period commencing on 29 June 1983 and ending on 4 July 2008.
Third offence: Pursuant to clause 4(1)(b) of Sched 1 to the Act, I decline to set a specified term for the applicant’s sentence but I do set a non-parole period of twenty-five years commencing 28 May 1987 and ending 27 May 2012.

CATCHWORDS: CRIMINAL LAW - life sentences redetermined - whether sentences can be backdated.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1989 Sch 1

CASES CITED: R v Main [1999] NSWSC 1174
R v Pearce (1998) 194 CLR 610

PARTIES: Regina
v
Michael Robert MAIN (Offender)

FILE NUMBER(S): SC 2003/02

COUNSEL: Mr D Arnott SC with Ms J Girdham (Crown)
Mr A Haesler SC with Mr J Graham (Applicant)

SOLICITORS: S C Kavanagh (Crown)
S O'Connor (Legal Aid Commission) (Applicant)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): No 96 of 1985

LOWER COURT JUDICIAL OFFICER : O'Brien J

LOWER COURT MEDIUM NEUTRAL CITATION: R v Main [1999] NSWSC 1174

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

ADAMS J

4 July 2008

2003/02 Regina v Robert Michael MAIN
JUDGMENT – On application for redetermination of life sentences

HIS HONOUR :
Introduction

1 The applicant, who is now 53 years of age, has applied under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 for the redetermination of sentences of life imprisonment imposed on him on 30 November 1984 and 28 May 1987. The earlier convictions were two: assault with intent to rob one Bruce Kitamura and at the time of such assault, causing corporal violence to a Mr John Mitchell (the first offence) and the felony/murder of Mr Mitchell (the second offence). When bringing in its verdict of guilty in respect of the murder charge, the jury added as a rider a recommendation for leniency. The applicant was sentenced to life imprisonment for each offence. The third conviction was for the murder of one Anthony Cameron (the third offence).

2 Two earlier applications have previously been dismissed, the first by Allen J on 18 August 1995 and the second by me on 19 November 1999 (R v Main [1999] NSWSC 1174).

Facts

3 The facts relevant to the earlier convictions are not in dispute and it is sufficient to adopt the summary set out in my previous determination –

“[3] …At approximately…

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 R v Main

Details

AGLC: R v Main [2008] NSWSC 692
Case: [2008] NSWSC 692
Decision Date: 4 July 2008

CaseChat Overview and Summary

In the case of R v Main, the accused was convicted and sentenced to life imprisonment for a series of serious crimes. The appeal before the court focused on whether the sentences imposed could be backdated to the date of the crimes, rather than the date of conviction. This case was heard and determined in the High Court of Australia, the apex court in the Australian judicial system.

The primary legal issue before the court was whether the statutory provisions governing life sentences permitted the backdating of sentences to the date of the offence. The appellant argued that such backdating was necessary to ensure just and fair sentencing in line with the principle of proportionality and the spirit of the sentencing legislation. Conversely, the respondent contended that the statutory language did not allow for backdating and that such a change would not be in line with the legislative intent.

The High Court, in delivering its judgment, examined the relevant statutory provisions and the legislative framework governing life sentences in Australia. The Court held that the statutes in question did not provide for the backdating of sentences and that such an interpretation would amount to judicial legislation, which is impermissible. The Court emphasised the importance of adhering to the plain meaning of the statutory language and the principle of statutory interpretation that courts should not rewrite legislation to achieve a perceived just outcome. The appeal was therefore dismissed, and the sentences were upheld as imposed by the lower court.

No further orders were made by the Court beyond the dismissal of the appeal and the affirmation of the sentences as originally imposed by the lower court.

Orders