Regina v Baker - [2001] NSWSC 412

No judgment structure available for this case.

CITATION: REGINA v. BAKER [2001] NSWSC 412

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC No. 12 of 1997

HEARING DATE(S): 30 June 2000; 7 September 2000; 14 November 2000

JUDGMENT DATE:
25 May 2001

PARTIES :

REGINA v.
BAKER, Allan

JUDGMENT OF: Greg James J at 1

COUNSEL : Crown: C.K. Maxwell, QC.
App: I.D. Temby, QC.

SOLICITORS: Crown: S.E. O'Connor
App: Brezniak Neil-Smith & Co.

CATCHWORDS: Criminal law - life sentences - application for re-determination - original offences of murder not worst class of case - statutory maximum for other offence reduced from life to 25 years - circumstances of all offences - views of trial judge - non-release recommendation - effects of amendments to s.13A - special reasons justifying determination - co-offender's sentences re-determined under provision before relevant amendments - facts different - no parity required - marked rehabilitation - no special reasons considering culpability - applicant not eligible for re-determination - power to direct applicant not re-apply does not arise.

LEGISLATION CITED: Sentencing Act 1989
Sentencing (Life Sentences) Amendment Act 1993
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Sentencing Legislation Further Amendment Act 1997

CASES CITED: Previtera (1997) 94 A. Crim. R. 76
Harris [2000] NSWCCA 469
Petrinovic [1999] NSWSC 1131
Cribb (CCA, unreported 4 November 1994)
Purdey (1992) 65 A. Crim. R. 441
Johnstone (Badgery-Parker, J., unreported 20 December 1992)
Williscroft (1975) VR 292
Baker (CCA, unreported 23 May 1994)
Kalajzich (1997) 94 A. Crim R. 41
Crump (CCA, unreported 30 May 1994)
Pearce (1998) 194 CLR 610
Lowe (1984) 154 CLR 606
Garforth (CCA, unreported 23 May 1994)

DECISION: Applicant not eligible for determination.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No. 12 of 1997

GREG JAMES, J.

FRIDAY 25 MAY 2001

REGINA v. ALLAN BAKER
JUDGMENT
(Application under s.13A of the Sentencing Act 1989)

1 HIS HONOUR: By application dated 22 July 1997, filed in this court on 1 August 1997, Allan Baker, seeks, pursuant to s.13A of the Sentencing Act 1989, an order determining a minimum term and an additional term for the life sentences imposed upon him in this court on 20 June 1974 following his convictions for murder and conspiracy to murder.

2 The applicant submits that, in the light of, in particular, his exemplary conduct for many years in gaol and reports holding out strong prospects for his rehabilitation, he should be afforded a minimum term or non-parole period on his life sentence to enable a possibility of release at some time in the future. He points to the re-determination of the sentence of his co-offender by McInerney, J. (in the application of Kevin Garry Crump (unreported 24 April 1997)) and submits that he should be afforded parity of treatment.

3 The Crown, however, submits by reason of particular provisions of s.13A, that he is not eligible to make the application in that the court would not be satisfied that special reasons exist that justify making such a determination; that the application should be declined; and the court should direct that he never re-apply under the section.

4 There was produced to me and marked for identification, a statement which was described as a victim's impact statement. As I indicated during the hearing I would do, I have treated it as is required by the principles set out in Regina v. Previtera (1997) 94 A. Crim. R. 76.

The original sentences

5 The applicant had been charged together with Kevin Gary Crump that he had murdered Ian James Lamb on 3 November 1973 near Narrabri. He was further charged that he had conspired with Crump on 7 November 1973 near Collarenebri and elsewhere in the State of New South Wales to murder Virginia Gai Morse.

6 In addition to those two matters, both he and Crump had been convicted at that trial of malicious wounding a police officer with intent to prevent their lawful apprehension and, with a similar intent, maliciously shooting at two other police officers.

7 The applicant and his co-accused were convicted of all the charged offences after having been found guilty by a jury following an eight day trial. They were both sentenced as follows. First count - life imprisonment; second count - life imprisonment; third count - 15 years hard labour to date from 15 November 1973; fourth count - 15 years hard labour to date from 15 November 1973. No non-parole period was specified.

8 Although the sentences were dated to commence from 15 November 1973, it is apparent from the charge sheets that the offenders were apprehended on the afternoon of 13 November 1973, initially charged by police on 17 November 1973 and remanded in custody on 19 November 1973 by the magistrate at Maitland.

9 The applicant was born on 16 January 1948 and, as at the date of sentence, had the following criminal record.

No. Date Court Offence Result

1 9.11.60 Helensburg Break, enter and steal Committed to an institution
Children's Court

2 11.12.62 Helensburg Break enter and steal Committed to an institution
Children's Court

(use of firearm)

4 21.7.64 Tamworth Stealing (3); House- Committed to an institution
Children's Court breaking implements for 12 months on each count
in possession

5 23.4.69 Sydney Quarter Break, enter and steal Two years hard labour
Sessions

Use pistol without a Three years hard labour,
licence accumulative

Escape lawful custody Six months hard labour,
accumulative (three further
charges taken into account
on schedule).

6 4.6.69 Kogarah Petty Firearm in possession 12 months hard labour
Sessions having previously been concurrent with sentences
convicted of summary serving
offence

10 Entry number five included an offence in which the applicant obtained an unlicensed pistol and fired it at a police officer who was endeavouring to arrest him. There were, in addition to the offences charged on indictment, on that occasion three matters contained in a Schedule taken into account by the learned Chairman of Quarter Sessions, his Honour Judge Prior. One of those matters related to the theft of a rifle and some 100 rounds of ammunition.

11 It can be seen from the applicant's record that he has spent the greater part of his life from the age of 12 in custody or under supervision. He was 26 years old when sentenced to life imprisonment. He is now 53 years of age. He has now been in custody serving the sentences then imposed for nearly 27 years.

12 The present maximum sentence of imprisonment prescribed by the law for the crime of conspiracy of murder is 25 years. The trial judge did not stipulate when the sentence he imposed for that offence, or the other life sentence, was to commence. Section 441A of the Crimes Act 1900, which was inserted in 1955 and which was in effect at the time of sentence, provided that a sentence shall take effect from the time when it was passed unless the court otherwise directs. The sentences were concurrent. The applicant has therefore served the whole of the sentences imposed on the shooting counts and has served a period in excess of the period currently prescribed as the maximum for the offence of conspiracy to murder, given that the effect of the trial judge's sentences was that each sentence would commence on the day of imposition. Absent any other considerations, that is a matter which might be crucial to the re-determination of the life sentences.

13 Indeed, in argument, the Crown declined to submit that in the event the sentences were to be re-determined, I should act otherwise than McInerney, J. did, in the case of the co-offender, and re-determine the sentence for conspiracy to murder to the presently applicable maximum. However, it was also submitted that if I were to decline to re-determine the sentence for the murder, there would be little point, even if it were open to me to do so, to re-determine the sentence for the conspiracy to murder. I do not understand the applicant to submit to the contrary. It was accepted by the Crown in their submissions that it was not open to me to give a direction the applicant not re-apply in respect of the sentence for conspiracy to murder. It was submitted that I should re-determine the sentence for the conspiracy to murder to 25 years and the sentence for the murder to an additional term of a life sentence with a minimum term or non-parole period which would permit some prospect the authorities might allow the applicant liberty some time.

14 The Crown contends that not only should there be no re-determination but argues that the murder was a most serious case of murder and it is in the public interest that a direction that the applicant never re-apply be made, although the Crown accepts that that killing, viewed in isolation of the other offences, cannot be so categorised, although it does submit that, in the context of the other offences, it should properly be categorised in that way.

15 At the time at which the applicant was sentenced to life imprisonment, that sentence was mandatory for the crime of murder and the maximum sentence for the crime of conspiracy to murder.

The views of the trial judge

16 When the jury returned with their verdicts of guilty on 20 June 1974, his Honour immediately sentenced each accused on the count of murder to life imprisonment. He then invited counsel for the applicant to address him in relation to the sentences on the remaining counts. The sequence of those events is of some significance as will be seen.

17 The applicant's antecedents were put before his Honour. Then, after hearing addresses, his Honour passed sentence on the remaining convictions. He noted that, although the appellants had not been charged with the murder of Virginia Gai Morse, he was of the view that he was entitled to take into consideration that the agreement to murder her was carried into effect and carried into effect by them abducting her, they having waited until her menfolk had gone from the homestead, which was in the north-west part of the State and until the children had gone to school. He found they had seized her, the present applicant being armed with a loaded rifle, bound, gagged and abducted her from her home by force.

18 His Honour found that their intention was to kill her in due course but, first, to use her to gratify their lust. He found she had been raped on at least two occasions and that she had been bound with ropes and driven hundreds of miles, bound and gagged in the car. After pleading for her life, she was raped again and then shot by the applicant's co-accused.

19 His Honour adverted to conduct by this present applicant in relation to the woman's body that was excluded from evidence at the trial. I need not detail that conduct.

20 His Honour made specific reference to the present applicant having worked for the deceased's husband and having lived on the property. He noted there was no animosity or reason for it between the applicant and the deceased's husband. He said:-

"For sheer cruelty, for callous indifference to suffering, for a complete disregard of humanity, for the complete absence of a spark of human decency, what you have done to this woman and to her children and to her husband is without parallel in my experience, and I have sat here many times over the years. You have outraged all accepted standards of the behaviour of men. The description 'men' ill becomes you. You would be more aptly described as animals, and obscene animals at that."

21 His Honour referred shortly to the circumstances of the murder charge and described the killing of Mr. Lamb for $20, the petrol in his car, his clothes and his "pitifully poor" possessions. He referred to the act of this applicant in shooting a man he did not know at point blank range as he was roused from his sleep.

22 Concluding that the conspiracy to murder was one of the worst cases, his Honour imposed on that count a sentence of life imprisonment and passed the other sentences to which I have referred.

23 His Honour said:-

"I believe that you should spend the rest of your lives in gaol and there you should die.

If ever there was a case where life imprisonment should mean what it says - the imprisonment for the whole of your lives - this is it.

If, in the future, some application is made that you be released on the grounds of clemency or of mercy, then I would venture to suggest to those who are entrusted with the task of determining whether you are entitled to it or not, that the measure of your entitlement to either should be the clemency and mercy you extended to this woman when she begged you for her life."

24 In addition, his Honour gave as his reason for not fixing a non-parole period:-

"My reasons are what I have earlier said and because of the sentences I have already imposed."

25 The reference there seems to be to the two life sentences which could not, under the then law or now, except on a re-determination like this, attract a non-parole period (but see Regina v. Harris [2000] NSWCCA 469).

The recommendation the applicant never be released

26 Before me in argument on this application, it was accepted that his Honour made a recommendation that the applicant and his co-accused never be released, when, in giving his reasons, he said:-

"If ever there was a case where life imprisonment should mean what it says - imprisonment for the whole of your lives - this is it."

27 Whether that recommendation was made in respect of both of the charges upon which the life sentence had been passed or merely in respect of the charge of conspiracy to murder, is a matter to which I will return. However, I note that in his Honour's remarks on sentence, before passing sentence on the conspiracy to murder and shooting offences, when discussing the killing of Lamb, his Honour referred to his having already passed sentence of imprisonment for life on the applicant and his co-accused for that crime.

Prior applications

28 In 1990, the present applicant sought a re-determination of his life sentences following on the change to sentencing law in New South Wales effected by the passing of the Sentencing Act 1989. I will later refer to the relevant provisions of that statute and the changes in the statutory regime effected by various amendments. The application came before Sully, J. who declined to set a minimum and additional term. An appeal to the Court of Criminal Appeal was dismissed on 23 May 1994.

29 The co-offender made an application for re-determination on 5 March 1990. That application was refused by Loveday, J. on 10 December 1992. An appeal to the Court of Criminal Appeal was dismissed on 30 May 1994. Special leave to appeal against that decision was refused by the High Court on 11 May 1995.

30 A second application, however, by that offender was granted by McInerney, J. on 24 April 1997. His Honour re-determined the sentences.

The facts of the offences

31 The trial judge did not refer to the facts other than broadly, as I have already indicated. In the various later judgments there appear recitals of the facts of the crimes committed by the applicant and his co-offender. It is, however, not necessary to compare those recitals, since the present application has gone forward on the basis of a statement of facts filed by the Solicitor for Public Prosecutions in accordance with Practice Note 57. Except in limited respects, there has been no demurrer to the outline of the facts as set forth in that document. It is convenient to set those facts out here:-

"The applicant and his co-offender, Kevin Garry Crump, had known each other for a couple of years prior to the offences in November 1973.

In October 1972, the applicant spent three weeks doing casual work on the property of Brian Morse at 'Banarway' near Collarenebri. During this period he was brought meals by Mrs. Virginia Morse and got to know the three Morse children.

On 26 September 1973, the applicant commenced employment as a casual tractor driver at 'Fairfield' Station , Boggabilla. He set up camp on the station property.

On 26 October 1973, Crump stole a high powered motor vehicle, the property of Philip McBride from Aberdare in the Hunter District, an area where he had lived for a number of years.

On 28 October 1973, Crump joined the applicant in employment at Fairfield Station and set up camp with him.

The employment of both men ceased temporarily on 2 November 1973 as wet weather prevented them from carrying out their operations as casual tractor drivers.

On 3 November 1973, the applicant, accompanied by Crump, purchased a Mauser .308 rifle at Goondiwindi in Queensland just across the border from Boggabilla.

On 7 November 1973 at 1.30 pm, the body of Ian James Lamb was found in his motor vehicle on the Bald Hill Road near Narrabri. A post-mortem examination carried out on 8 November 1973 disclosed the cause of death to be a bullet wound to the neck just below the jaw line which had shattered the first, second and third cervical vertebrae and severed the spinal chord.

At about 10.30 am on 7 November 1973, Mr. Morse set off in his truck from his 'Banarway' homestead leaving Mrs. Virginia Morse alone on the property. When Mr. Morse returned at about 7.00 pm, he found his wife to be missing. An examination of the homestead revealed that certain items, including two rifles had been stolen.

On 9 November 1973, both the applicant and Crump resumed work at 'Fairfield' Station.

On 13 November 1973, after a member of the public informed Maitland Police that he had observed the car which had been stolen from Aberdare on 26 October 1973, in the area, police located the car and set out in pursuit.

Three separate police cars took part in the chase which started at Maitland at about 11.00 am and finished up to Woodville some three hours later where the chase was continued on foot. The police vehicle which were occupied by Constable Neale, Senior Constable Jones, Constable Millward, Senior Constable Snedden and Constable Hore each came within close proximity of the stolen car driven by Crump with the applicant as his passenger at various stages of the pursuit.

Constable Neale's vehicle was side swiped by the fugitives' car and was forced off the road before resuming the case. There were a few exchanges of shots between Constable Jones in the police vehicle driven by Constable Millward and the applicant. During the last exchange of shots in Maitland a bullet from the applicant's rifle shattered the windscreen of the police vehicle and struck Constable Millward in the head. He was treated at Maitland Hospital for a gunshot wound to the head and discharged some six days later.

The Snedden/Hore police car was fired at by the applicant on two occasions, one of the bullets striking the vehicle.

The stolen car came to a stop in a lucerne paddock in the Woodville area with the Snedden/Hore police car still in close pursuit. Both the applicant and Crump alighted from their vehicle with each in possession of a rifle. Both fired at pursuing police before they were finally arrested, the applicant at 2.00 pm and Crump at 2.15. The rifles used by both men and ammunition were recovered at the scene of the arrests.

Both men were taken to Maitland Police Station where they took part in records of interview which contained full admissions in respect of all offences with which they were subsequently charged."

32 The applicant had given four recorded interviews to the police as follows - 1.00 pm on 14 November 1973 regarding the murder of Ian Lamb; 3.10 pm on 14 November 1973 regarding the conspiracy to murder Virginia Morse; 9.15 am on 17 November 1973 regarding the conspiracy to murder Mrs. Morse; and 6.20 pm on 13 November 1973 regarding the s.33 offences.

33 A synopsis of the admissions follows:-

"The applicant and Crump decided on their return from Goondiwindi on 3 November 1973 to hold up the driver of a car with a view to obtaining petrol and some money. The applicant remembered having earlier observed a car parked near a rest area on a Narrabri Road so they went there first and found the car still in that position.

The applicant took a loaded rifle over to the car and (after Crump had checked to see that the driver was alone in the vehicle) 'knocked on the door with my hands and said, "Hey, you". The bloke sat up and I pulled the trigger and shot him. It hit him in the voice box'.

The applicant then took about $20 out of the deceased's pocket before driving Mr. Lamb's car for some 16 or 17 miles. He and Crump then took certain other items from the car before departing. Both the applicant and Crump wore face masks during this incident.

On 7 November 1973, the applicant and Crump kept the Morse homestead under observation through binoculars. At about 10.30 am they saw Mr. Morse leave in his truck after having earlier taken his children down to catch the school bus.

Both offenders then went into the house, overpowered Mrs. Morse then bound and gagged her. They then ransacked the house, removing two rifles amongst other items before carrying Mrs. Morse to her husband's car and driving with her to where they had earlier secreted the car which had been stolen from Aberdare on 26 October 1973.

The two offenders then stole petrol from Mr. Morse's car which they transferred to the McBride vehicle before secreting Mr. Morse's car in the place which had earlier held the McBride car.

Both men then placed Mrs. Morse, bound, gagged and blindfolded into the stolen vehicle of McBride before driving away in a northerly direction with her.

At the first stop made by them they removed Mrs. Morse from the vehicle, took off her lower garments, extended and secured above her head her bound arms, separated and extended her legs and secured them apart with ropes and while she was so immobilised and incapable of resistance each in turn raped her.

Resuming the journey they crossed the Queensland border and stopped near the Patterson River where Mrs. Morse was again raped by both men.

The circumstances of Mrs. Morse's murder were described by the applicant in the following terms:-

'She wasn't tied to the tree, her hands were tied in front of her with handkerchiefs, she wasn't crying because I think she was beyond that, she'd been crying most of the time, she was gagged and blindfolded. I aimed at her with the .308 and Kevin had the .22 and it was going to be like a firing squad and Kevin pulled the trigger and she fell to the ground before I could pull the trigger of my gun. If he hadn't of shot her, I would because we both decided to kill her because we done those terrible things to her and she would have been able to identify me because I used to work for her husband and I know if she reported me we would be in a lot of trouble and she just had to be shot.'

The bullet struck Mrs. Morse between her eyes and the right hand side of her nose.

The applicant then stripped the deceased and both men concealed her naked body in a nearby stream before disposing of her clothing and other objects associated with her and the slaying.

It might be noted that in his record of interview, Crump stated, 'I didn't shoot her. Allan Baker did'.

However, on 16 November 1973, both men escorted by police went to near the intersection of the Goodar Road and the Leichhardt Development Road in Southern Queensland. There Crump pointed out to police where Mrs. Morse was shot and was asked, 'where were you when Mrs. Morse was shot?'. His response was, 'it's not going to make any difference, I shot her. I was standing behind that three there'. He then indicated a tree about nine feet east of the tree where Mrs. Morse had been sitting when she was shot.

Crump was then asked whether he had aimed for any particular portion of her body when he fired and he replied, 'yes, right here', indicating the inside portion of his right eye. 'Because Allan said, 'if I shot her there it would probably kill her straight out'. He added that Baker was with him and was aiming the other gun at Mrs. Morse. Both men then directed police to the spot from which Mrs. Morse's body was recovered.

In the record of interview of 13 November 1973, the applicant admitted being with Crump in the McBride vehicle during the police chase and firing 'about four shots' at the police car one of which hit a police officer. He stated that at one stage the men had changed positions and Crump had then fired at a pursuing police car while he drove. They then changed over again and the applicant had fired 'a couple more shots' at the yellow (police) car.

The applicant also admitted firing at police after he and Crump had alighted from their car. When the chase commenced he though the police were on to them about the job (a break and enter) they had done that morning.

At his trial, the applicant made the following unsworn statement:-

'Your Honour, gentlemen of the jury, I am not guilty of the charges of murder of conspiracy to murder. I did not mean to shoot the man in the car. The gun was a scare weapon. All I meant to do was tie the man up and rob him. When I went over to the car and knocked on the door I said, 'hey, you', and the guy in the car sat up suddenly and made a noise and I jumped backwards and the gun went off. I didn't know I had shot the man until Kevin Crump told me. I didn't know my finger had pulled the trigger. I had no reason to shoot the man, he did not know us.

As I told the police, it was dark at the time and we had masks on. I never told them that I intended to shoot or kill the man in the car and I have never told that to anyone, because it is not true.

I know we are responsible for the death of Mrs. Morse. I cannot forget it, and I know I should be punished for that, but we didn't agree to kill her till the day she died. Even then, we didn't really agree to kill her. It is true that Kevin never wanted to shoot Mrs. Morse.

When the police were questioning me about Mrs. Morse I felt so bad about it I just agreed to everything. That's all I can say.'"

34 The limited exceptions to which I have referred are that the applicant had worked at Banarway Station, he contends for seven weeks not three weeks and that the rapes of Mrs. Morse occurred after the applicant and Crump had crossed the Queensland border. Other than in the unsworn statement and in those respects, there is no challenge to the accuracy of the above account of the applicant's actions, notwithstanding that account plainly admits the commission of further serious criminal offences other than those for which he was sentenced.

The former statutory provisions

35 The statutory provisions permitting an application of this kind have varied from time to time. The history of those provisions to that time is set out in the judgment of McInerney, J. of 24 April 1997.

36 Upon the coming into effect of the Sentencing Act 1989, that Act made provision for prisoners previously sentenced to imprisonment for life to make application for the sentence to be re-determined for a minimum term and an additional term pursuant to s.13A of that Act. That provision was in consequence of amendments (which have subsequently been themselves amended) to the Crimes Act 1900 having the effect that sentences of life imprisonment (and formerly penal servitude for life) were to be served for the whole of the offender's life without hope of release. I have discussed such sentences and the now relevant provisions in Regina v. Petrinovic [1999] NSWSC 1131.

37 The original form of s.13A(4) was:-

"The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence:-

(a) set both:-

(i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed; and

(ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person's natural life); or

(b) decline to determine a minimum term and an additional term."

38 Section 13A and the principles to be applied on a re-determination under that section as it then stood, have been considered in many cases and are considered in detail by the Court of Criminal Appeal in the judgment of Badgery-Parker, J. in Regina v. Cribb (CCA, unreported 4 November 1994). Those principles have been considered and applied to the first application by Sully, J. and the Court of Criminal Appeal in the light of the legislation as it then stood.

The decision on the first application

39 It is appropriate to consider the views taken by the courts of the gravity of these crimes in previous judgments, particularly for the purpose of ascertaining the objective seriousness of the crime in the context of the consideration of an application for re-determination made after previous applications, and with a view to considering how substantial might be the weight accorded to the views of the trial judge and whether those views should be adopted or given effect to.

40 Sully, J. had declined to determine a minimum and additional term. He had observed:-

"The two crimes for which the applicant was so convicted and sentenced were as wicked as can be imagined."

41 He described the facts of the crime. He said:-

"That bare description does not begin to capture the true nature and extent of the horrors to which Mrs. Morse was subjected at the hands of the two offenders. The details have been canvassed publicly and on several occasions and they need not now be repeated in all their shocking detail. Suffice it to say, that what was done to Mrs. Morse is as terrible a tale of deliberate inhumanity as can be imagined, even in a society as plagued by violence and depravity as our own."

42 The approach his Honour took consonant with that taken in other matters, bearing in mind the form of the statutory provision at that time, was first to look at the range of sentences properly available to the sentencing judge, had the sentencing judge been proceeding in accordance with the Sentencing Act 1989. That approach is consistent with the observations in Cribb (supra), Regina v. Purdey (1992) 65 A. Crim. R. 441 and The Queen v. Johnstone (Badgery-Parker, J., unreported 20 December 1992) concerning the carrying out of the function of the court under s.13A as it then stood.

43 His Honour was of the view that approaching the matter in that way, it was open to a sentencing judge, passing sentence for these crimes under the law as it stood after the amendments to the life sentence provisions including those of the Crimes Act 1900, in accordance with the truth in sentencing regime, to have passed sentences of penal servitude for life under which, at law, the applicant would never be released.

44 His Honour had regard to the report of the Serious Offenders' Review Board that was then before him. That report included in the summary to that report, reference to the applicant regretting his crimes, accepting his punishment and having an exemplary conduct and work record in custody. His Honour noted from other reports that the applicant had been, in recent years, a model prisoner, a good and constant worker who had made real efforts to improve his personal vocation and living skills; that he had reached such a level of self-awareness and self-discipline as to make it an acceptable prospect from the point of view of public safety, that he be considered for release back into the general community at some future determined time and that he had progressed through the prison system as far as he could while ever he is burdened with an indeterminate sentence.

45 He noted impressive evidence given on the applicant's behalf by Ms. Alysan Pender who observed:-

"In the past 10 years I have known Mr. Baker, I have never been able to see any resemblance between the decent man I observe day to day in the gaol and the man who committed two well-documented murders.

I believe he is not a threat to society, but is wasting his time and our money in gaol. He has committed an offence, the memory of which will haunt him for the rest of his life, whether he is in gaol or out of gaol."

46 His Honour noted that on Crump's appeal from the conviction and sentence to the Court of Criminal Appeal, that court said that it agreed "entirely" with the comment of Taylor, J. that life imprisonment should mean, in the cases of the applicant and his co-offender, exactly what it says. His Honour reviewed the then current law of sentencing and in particular the requirement of a sentencing judge to give the requisite degree of attention to the gravity of the offence viewed objectively and the aims of punishment set out in the well-known passage quoted by Crockett, J. in The Queen v. Williscroft & Ors (1975) VR 292 at 300 from the comments made by Sir John Barry.

47 His Honour concluded that an appropriate approach to the application would be based on an:-

"Understanding that the crimes here in question are so extreme that it can be accepted more readily than might be possible in a different type of case, that the 'general moral sense of the community' would accord precisely with the perception of Taylor, J., that the applicant's case is one, if ever there was a case, where life imprisonment should mean exactly what it says."

The view of the Court of Criminal Appeal

48 That approach was described by Gleeson, CJ. in the Court of Criminal Appeal in Regina v. Baker (unreported, 23 May 1994) with reference to the crimes:-

"They were so heinous in their nature that, in his Honour's view, this is a case where life imprisonment should mean exactly what it says."

49 The Chief Justice went on to observe that the same view had previously been expressed by other judges who had dealt with the case. His Honour was of the view he was unable to conclude Sully, J. erred in that respect. Smart, J. regarded the crimes as of the gravest kind requiring emphasis on the importance of protection of the public and deterrence. Notwithstanding the progress of the applicant to rehabilitation, his Honour was of the view that it was not appropriate to set a minimum term at that stage. Studdert, J., with whom the Chief Justice and Smart, J. agreed, reviewed all of the favourable material before Sully, J. and detected no error in his Honour's approach.

The decision of McInerney, J.

50 Section 13A was amended by the Sentencing (Life Sentences) Amendment Act 1993. By that amendment, subsections (8), (8A), (8B) and (8C) were inserted. Subsequently, the latter three subsections have been amended to alter the period referred to therein from two years to three years. By that amendment, provision was made to enable the court to direct that a person who made the application might, if the court declined to determine a minimum term and an additional term, be the subject of a direction never to re-apply to the court or not to re-apply for a specified period. Such a direction might only be given if:-

"8C(a) the person was sentenced for the crime or murder; and

(b) it is a most serious case of murder and it is in the public interest that the determination be made."

51 These provisions were considered by McInerney, J. in the light of the Second Reading Speech by the then Attorney-General, Mr. John P. Hannaford, on 9 November 1993. The Attorney-General referred, in that speech, to the recommendation that a prisoner never be released in this way:-

"The judiciary have the discretion under the old system to recommend that a prisoner never be released, due to the gravity of the crime and the danger to the community. This was, however, a recommendation only and could be over-ridden by the old system of remissions and Executive early release on licence, abused by the former Labour Government. The truth in sentencing legislation now provides that offenders sentenced under the system must actually serve the term of imprisonment set by the judiciary. Life now means life".

52 The Attorney referred to the Bill as conferring power on the court, in effect, to confirm the life sentence by barring future applications for the protection of the community. But he also said:-

"The Government is conscious that these additional powers given to the Supreme Court should be reserved for only the most serious cases involving the crime of murder and where the public interest so demands. These criteria are specifically stated in the Bill.

In summary, the Bill reflects the Government's commitment to ensure that any decision can never release an old life prisoner will remain with the judiciary, where it properly resides, free of Executive interference. Those cases deserving life imprisonment under the old system will now truly receive life under the Act. Truth in sentencing will thereby be fully achieved in these cases."

53 The amendment inserting the subsections replaced the previous recommendations to the Executive that an offender never be released, a recommendation of no binding legal effect, with a judicial direction there be no further application, which is made upon an application for re-determination and which does have final legal effect. That effect precludes the Executive from acting to release a prisoner if such a direction has been given, subject to the remaining prospects for pardon or the exercise of the royal prerogative, insofar as they are not excluded by the legislation.

54 McInerney, J., in considering the re-determination of the sentences of Crump, considered the effect of those amendments. He concluded that the amending provision did not apply to the crime of conspiracy to murder and noted that the Crimes Act 1900 had been amended to substitute a maximum sentence of imprisonment for conspiracy to murder of 25 years in lieu of the life sentence formerly provided. His Honour concluded, after examining the limited involvement of Crump in that crime, that Crump's involvement in the murder of Mr. Lamb was not such as to bring his offence within the worst case category and thus it was not, in his case, "a most serious case of murder" and "such that it is in the public interest that the determination be made", notwithstanding the Crown asserted an aggravation of his criminality arising from his involvement in the conspiracy to murder Mrs. Morse. His Honour sharply distinguished between the roles of the two offenders in the killing of Mr. Lamb.

55 His Honour acting under that legislative regime and, having regard to the particular circumstances of Crump, concluded that, even having regard to the multiple offences and the totality of criminality involved, he was not disposed to make an order that Crump not re-apply either in respect of the involvement in Mr. Lamb's murder or in respect of the conspiracy to murder Mrs. Morse. As to the first, on the basis that it did not fall within the statutory criteria, and as to the second, because it was not the offence of murder, to which crime only, the relevant statutory provisions applied.

56 His Honour was of the view that in those circumstances, he should exercise his discretion to set a minimum and additional term and to proceed to re-sentence in the way described by Badgery-Parker, J. in Cribb (supra), as was described by Hunt, J. in Purdey (supra) and again by Badgery-Parker, J. in Johnstone (supra).

57 His Honour concluded, after examination of the legislation as it then stood and the facts referrable to Crump, that he should re-determine Crump's sentences and in lieu of the two life sentences, imposed a minimum term of penal servitude for 30 years commencing on 13 November 1973 and concluding 12 November 2003 for the murder of Mr. Lamb. He set an additional term for the remainder of Crump's natural life. For the conspiracy to murder Mrs. Morse, he sentenced Crump to the maximum sentence then available according to law of 25 years penal servitude commencing on 13 November 1973 and concluding on 12 November 1998.

58 There has been no appeal against his Honour's determination. One of the submissions advanced to justify a re-determination of the applicant's sentences is that he should receive parity of treatment with Crump.

The legislation applicable to the present application

59 The Crown submitted that the relevant legislation applicable to the consideration of the present application, notwithstanding the repeal of the Sentencing Act 1989 by reason of the Crimes (Sentencing Procedure) Act 1999 was s.13A as it stood as amended in the Sentencing Act 1989 in 1997 when the application was made.

60 It was submitted that the application was made, prior to the commencement of the Crimes (Sentencing Procedure) Act 1999 and is an application referred to in Clause 8(1) of Schedule 2A to the 1989 Act. That clause, as amended, provided that the amendments to s.13A of the Sentencing Act 1989, effected by the Sentencing Legislation Further Amendment Act 1997, No. 6, applied to applications made before the date on which the bill for the amending Act was introduced into Parliament (as well as in relation to applications made on or after that date) (subject to an exception not necessary to consider). That date was 8 May 1997. Thus, since the application was made on 22 July 1997, filed on 1 July 1997, the form of s.13A, as it was after the 1997 amendments, would be applicable. The result of those amendments was that the section under which this application must be dealt with was materially different in a number of respects from that applicable to the earlier application and to Crump's application.

61 The applicant did not submit that I should not follow the Crown submissions in this regard.

62 Section 13A, as applicable, provides:-

"(1) In this section:-

'existing life sentence' means a sentence of imprisonment for life imposed before or after the commencement of this section, but does not include a sentence for the term of a person's natural life under s.19A of the Crimes Act 1900 or s.33A of the Drug Misuse and Trafficking Act 1985.

'non-release recommendation', in relation to a person serving an existing life sentence, means a recommendation or observation, or an expression of opinion, by the original sentencing court that (or to the effect that) the person should never be released from imprisonment.

(2) A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence.

(3) A person is not eligible to make such an application unless the person has served:-

(a) at least eight years of the sentence concerned, except where paragraph (b) applies, or

(b) at least 20 years of the sentence concerned, if the person was the subject of a non-release recommendation.

(3A) A person who is the subject of a non-release recommendation is not eligible for the determination of a minimum term and an additional term under this section, unless the Supreme Court, when consider the person's application under this section, is satisfied that special reasons exist that justify making the determination.

(4) The Supreme Court may, on application duly made for the determination of a minimum term and an additional term for a sentence:-

(a) set both:-

(i) a minimum term of imprisonment that the person must serve for the offence for which the sentence was originally imposed; and

(ii) an additional term during which the person may be released on parole (being either an additional term for a specified period or for the remainder of the person's natural life); or

(b) decline to determine a minimum term and an additional term.

(4A) In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court).

(5) A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced.

(6) If the Supreme Court sets a minimum term and an additional term under this section, the sentence comprising those terms replaces the original sentence of imprisonment for life.

(7) A minimum term and an additional term set under this section are to be taken to have been set under this Part but are not required to comply with the other provisions of this Part.

(8) If the Supreme Court declines to determine a minimum term and an additional term, the court may (when making that decision) direct that the person who made the application:-

(a) never re-apply to the court under this section; or

(b) not re-apply to the court under this section for a specified period.

(8A) If the court gives a direction under subsection (8) that a person may never re-apply to the court under this section, the person is to serve the existing life sentence for the term of the person's natural life.

(8B) If the court does not give a direction under subsection (8), the person may not re-apply within the period of three years from the date of the court's decision to decline to determine a minimum term and an additional term.

(8C) A direction under subsection (8) that a person may never re-apply to the court under this section or not re-apply for a period exceeding three years may be given only if:-

(a) the person was sentenced for the crime of murder; and

(b) it is a most serious case of murder and it is in the public interest that the determination be made.

(9) The Supreme Court, in exercising its functions under this section, is to have regard to:-

(a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under s.463 of the Crimes Act 1900 and of the practice relating the issue of such licences; and

(b) any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court; and

(c) the need to preserve the safety of the community, and

(d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application),

and may have regard to any other relevant matter.

(10) The regulations may make provision for or with respect to reports referred to in subsection (9), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court.

(10A) The Supreme Court, in exercising its functions under this section:-

(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned, and

(b) must give consideration to adopting or giving effect to their substance and the intention of the original sentencing court when making them, and

(c) must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so.

(11) The Supreme Court may make a determination for a minimum term and an additional term for a sentence even though the court was not the sentencing court, or the court is not constituted in the same way as it was when the applicant was sentenced.

(12) An appeal lies to the Court of Criminal Appeal in relation to:-

(a) the determination of a minimum term and an additional term under this section; or

(b) a decision to decline to make such a determination; or

(c) a direction that a person my never re-apply for such a determination or not re-apply for a period exceeding three years.

The Criminal Appeal Act 1912 applies to such an appeal in the same way as it applies to an appeal against a sentence.

(13) The reference in subsection (4A) to an offence of which a person has been convicted:-

(a) includes:-

(i) a finding that an offence has been proved without proceeding to a conviction against the person, or

(ii) any offence taken into account when sentence was passed against the person, but

(b) does not include:-

(i) an offence that has been quashed or set aside within the meaning of Part 4 of the Criminal Records Act 1991, or

(ii) an offence of a class or description prescribed by the regulations for the purpose of this paragraph."

63 The word "determination" in subsection (8C)(b) has been held to refer to the direction never to re-apply, rather than the determination of the application: see Regina v. Kalajzich (1997) 94 A. Crim. R. 41 at 47.

Present features of s.13A

64 Importantly, the section in this form differs markedly from that which applied when Sully, J. considered the first application. It also differs from that which applied when McInerney, J. came to consider the application of the co-offender. It is no longer enough to treat the consideration of the application as a fresh sentencing exercise with the benefit of the knowledge of what has transpired since the sentence was imposed and, hence, with the benefit of a more advantageous predictive position, as the authorities I have referred to had held was the approach formerly to be taken.

65 The person serving the life sentence, if subject to a non-release recommendation, is not eligible to make application unless, at least, 20 years have been served (subsection (3)(b)) and the court is satisfied that special reasons exist that justify making that application (subsection (3A)). The power in the court to re-determine sentence is predicated, where there is a non-release recommendation in relation to a person serving an existing life sentence, on those matters being made out when the court is considering the application. It is only on an application duly made that the court may consider determining the sentence. In considering the application, the court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed and to the other offences of which the person has been convicted. Thus, the court is to take those matters into account when considering what, if any, reasons for a determination exist and whether they have such a special character as would justify making the determination. It is, therefore, necessary to consider the other offences for which the applicant was sentenced and their circumstances when considering the determination of either or both of the life sentences.

66 In addition, subsection (9) and subsection (10A) require that the court have regard, as is in each subsection set out, to the matters referred to therein. Subsection (10A) requires that the court, in exercising its function, have regard to the relevant recommendations, observations and comments made when the sentence concerned was imposed and requires that the court must give consideration to adopting or giving effect to their substance and intent. In addition, the legislature places such importance on the relevant recommendations, observations and comments of the trial judge, that the court is directed that it must, to the extent that it declines to adopt or give effect to them, state in writing its reasons for so doing.

67 It is apparent that both when having regard to whether a non-release recommendation has been made and when considering the person's application to ascertain whether it is satisfied that special reasons exist that justify making the determination, the court is exercising a function. Subsections (9) and (10A) must be taken into account when the court is exercising a function. Consequently, the matters referred to by those subsections must be considered, not only when considering whether a non-release recommendation has been made, but also, upon considering a re-determination as well as when considering whether a direction never to apply should be given. Thus, the court must consider the non-release recommendation and the observations or expressions of opinion of the trial judge and the trial judge's comments as well as all the surrounding circumstances and the matters referred to in subsection (9). But it is required to give substantial weight to the recommendations, observations and comments referred to in subsection (10A).

68 It would seem that the special reasons justifying the making of the determination must be such as would warrant not applying a non-release recommendation and accompanying comments that the offender is never to be released. In this case, bearing in mind those recommendations, observations and comments of the trial judge I have set out, the surrounding circumstances and other offences, to justify the determination, the reasons would have to be so powerful and, thus, special that it is not necessary for me to further consider the precise ambit of that term "special" in this context. I cannot envisage reasons that could have such an effect which would not, in this context, be special.

69 It, therefore, becomes most important to determine in the light of what was said by way of recommendation, observation or comment by the trial judge, whether it was said in respect of both life sentences and, given that the applicant has served in excess of 20 years of the life sentences passed upon him, to identify what matters are said to amount to the special reasons which it is submitted justify making the determination.

70 As I have said, it is necessary that on the consideration regard will be paid to the surrounding circumstances and the other offences of which the applicant was convicted, although it will not to offences of which the applicant has not been convicted. Importantly, in order to consider the significance of what had been said by the trial judge and its contents and, in particular, in respect to the offence against Mrs. Morse, I may be assisted by the observations of Sully, J. and those in the judgments in the Court of Criminal Appeal that I have already set out concerning those matters.

71 It will also be necessary to have regard to the knowledge of the original sentencing court of the applicant's potential eligibility to be released on licence and the practice relating to the issue of such licences. Further, it is necessary to have regard to the reports provided, the need to preserve the safety of the community and the age of the person. I have already referred to the matter of age.

72 To the matter relating to the knowledge of the sentencing court, I apply the observations of McInerney, J. at pp.33-36. I see no reason to differ from his Honour's description of those matters. In respect of the other matters, regard will need to be paid to the evidence before me, including that of the applicant, to which I will turn shortly.

73 In the event that it is concluded that a person who is the subject of a non-release recommendation is not eligible for the re-determination by reason of the lack of satisfaction of the requisite special reasons as provided for by subsection (3A), a question may arise as to whether the court would decline to determine a minimum term and an additional term and, as a result, consider directing that the applicant never re-apply or not re-apply for a specified period in accordance with the power conferred by subsection (8).

Direction not to re-apply

74 McInerney, J. has held that a direction not to re-apply may only be given in respect of the life sentence for murder and that he was not satisfied, in the circumstances applicable to Crump, that the murder met the requirements posed by subsection (8C)(b). I agree with the first of those observations. However, this applicant stands in a very different position to Crump in respect of that killing. I have regard to the views of McInerney, J. and the views of Loveday, J. (in the application of Kevin Garry Crump (unreported 10 December 1992)) expressed on a previous application by Crump, as well as the views of Mahoney, JA. and Allen, J. in the Court of Criminal Appeal (Regina v. Crump (CCA, unreported 30 May 1994). Particularly I note McInerney, J's. examination of Crump's complicity and his observations which are equally applicable to this applicant that no reasonable expectation could have been justifiably held of release on licence.

75 I have concluded that the applicant's culpability is akin to that of Crump's on the conspiracy to murder. However, in the murder of Mr. Lamb, the applicant was not only the principal but appeared to commit a callous and casual act of homicide as though it were an almost instinctive response to a situation where he was minded to take the opportunity to obtain the property of the deceased he could easily and safely have obtained without killing. It was not even necessary for him to hide his identity, since both offenders were masked. McInerney, J. refers to Crumps' complicity at p.12-19 of his judgment. He refers to the comparative positions of the two offenders at p.22, where he refers to the views of other judges concerning the culpability of Baker:-

"The only judge who has described the murder of Mr. Lamb as being in the worst case category is Sully, J. (in Baker's application) when he referred to Baker's involvement, an involvement, in my view, much more heinous than Crump's involvement, as I have stated earlier."

76 At the time of Sully, J.'s decision, there was no power to direct the applicant never re-apply and, thus, never be released. Had Sully, J. had the power, it is evident he would have exercised it.

77 McInerney, J. rejected the Crown submission that the murder of Mr. Lamb fell into the worst case category by reason of the other offences, including the conspiracy to murder Mrs. Morse, on his construction of subsection (8C) as confining the basis for such an order to the murder.

78 Relevantly, to this aspect of consideration of the application, subsection (4A) provides that the court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed and the other offences on consideration of the application. The application of subsection (8), however, only arises if the court, having considered the application, declines it. Thus the effect is that subsection (4A) apparently does not relate to the giving of a direction under subsection (8). Subsection (4A) is not introduced by the words which commence subsections (9) and (10A) and which extend to the court's exercise of any of its functions under the section. These latter words are apt, not only to consideration of the making of the determination, but also, to any function under the section including directing the person to never re-apply. It would therefore seem that, in the event the court declines to determine a minimum term and an additional term, it may, in discretion, having regard to the matters referred to in subsection (9) and giving substantial weight to relevant recommendations, observations and comments made by the original sentencing court, and having given consideration to adopting or giving effect to their substance and intent, (subsection (10A)) direct the applicant never re-apply. But it is only to do so if the sentence for the crime of murder involved a most serious case of murder and it is in the public interest the determination be made (subsection (8C)).

79 Although, as I have said, McInerney, J. construed subsection (8C) by restricting its application to the murder sentence alone and s.13A has subsequently been amended as I have set out, it does not appear to me that provision has been made to overturn the construction preferred by McInerney, J, notwithstanding the amendments that were made after his decision. On such an important matter so affecting the prospect of liberty, in the way in which, if applied, the subsection would, I would construe the provision so as not to apply more widely than the language strictly construed would require.

80 I do not see any reason not to follow his Honour's views in that regard. Consequently, it is only if I should come to the view that "it is a most serious case of murder" and "it is in the public interest that the direction be made" that the discretion to direct that the person who made the application never re-apply, should be exercised to that end.

81 Even having regard to the much more serious role of this applicant in the killing, but having, as I have, reviewed the great bulk of judgments in this court and in the Court of Criminal Appeal on re-determination and life sentences imposed since the "life means life" sentence was introduced, including the recent decision in Harris (supra), I do not consider that this offence of murder, considered apart from the other offences, was such an offence as met the criteria I referred to in Petrinovic (supra) or those required to be met here (if they are different).

82 Should I decline to determine the application for re-determination of the life sentence for murder, I therefore will not direct the applicant never re-apply.

83 In reaching this view, I have regard to and give substantial weight to the recommendations, observations and comments of the sentencing judge in relation to both offences, but I consider that the restriction on the court's power to direct an applicant never re-apply in subsection (8C) does mean that I am not required to adopt or give effect to their substance and intent, so far as they amount to a non-release recommendation, because there is in the instant case no compliance with the restriction. For that reason and those that I have earlier given for my decision not to give such a direction, I decline to adopt or give effect to what his Honour, the trial judge, said to that extent.

84 My not granting this application, however, may mean that the applicant would only practically be able to re-apply in changed circumstances so powerful, in effect, as to have that special character I have referred to as special reasons. I am of the view that it would remain open for circumstances to occur in the future of such a kind, although I am presently unable to predict what they might be and I should not seek to preclude an application based on them.

85 Since the parties accepted that either both sentences or neither should be re-determined, it is only necessary for me to consider further the particular application of the trial judge's statements to the re-determination of the conspiracy sentence, should I come to the conclusion that the life sentence for murder might be re-determined.

Non-release recommendation

86 Although it was conceded in the submissions of the applicant until a relatively late stage of the hearing of the matter, that the debate had proceeded upon the basis that there was a non-release recommendation relevantly made which had the consequence that subsections (3A) and (3)(b) applied, after I considered the sequence of the passing of the sentences, it was submitted that no such recommendation was made in relation to the life sentence for murder. It was submitted that the sentencing judge's observations, recommendations and comments were not made "when imposing the sentence concerned", ie., the life sentence for murder. It was accepted that, having regard to the definition of "non-release recommendation", the recommendation here was a recommendation or observation or an expression of opinion by the original sentencing court but it was said subsection (10A) was only applicable to those statements if made when imposing the sentence concerned and, that, what was said here was not a recommendation in relation to the existing life sentence for murder or, at least, much of what was said was not a recommendation in relation to that sentence, since it was submitted most of what was said and, the critical matter, did not relate to the life sentence of murder but to that for the conspiracy to murder. It was thus submitted there was only one non-release recommendation and it related to the conspiracy. It was submitted that his Honour's last remarks related only to that offence.

87 That argument would allow great importance to the reduced maximum for the conspiracy offence as warranting the re-determining the sentence for that offence. If successful, that argument would mean that subsection (3A) would not apply to the murder sentence, nor subsection (10A). However, subsection (4A) would.

88 In particular it was put that the sequence of events and the last paragraph of his Honour's observations which is it is said is necessarily referrable only to the offence committed against Mrs. Morse, supports that submission.

89 The Crown submissions point out that the definition of non-release recommendation would extend to such a recommendation made at any time and whether or not it is applicable to another crime as well as to the crime of murder. It is submitted that a non-release recommendation could relate to the sentences for both crimes and, here, it does.

90 Considering those other offences to the murder, for myself, and the circumstances surrounding them, even ignoring what other judges have said, but considering, also, the weight I must give to the circumstances of those offences, there is a question as to how much practical utility there is in the applicant's submission. I consider that the totality of the criminality of the offences, considered objectively, is such that the applicant has, absent the most powerful reasons, forfeited the right to ever walk free. Much weight is, however, put on the references in the section to the "sentence concerned" as pointing to a discrete consideration of matters relating to each sentence. The argument also turns on the severability of his Honour's remarks.

91 As I have said, the Crown submits that the recommendations here should properly be interpreted as applying to both of the counts for which life imprisonment was imposed, in part, because it appears at the end of a paragraph which deals with both counts in the learned trial judge's remarks and because the very nature of such a recommendation is that it should, if made, be made intending it to have the effect of preventing release under all sentences, not merely one sentence.

92 In essence, it is the Crown submission that one sentencing process occurred. I accept that submission. The record endorsed on the indictment suggests no such discrete consideration of the murder sentence from the sentencing exercise as has been submitted. Further, upon an examination of the proceedings before his Honour, it appears that his Honour passed the mandatory sentence but had not concluded what he wished to say. Before he added such recommendations, observations and comments as he was minded to add, he invited counsel for the prisoners to address him on the other sentences and the Crown Prosecutor sought that the prisoners' antecedents be given. The sentencing exercise had, at that point, not concluded. It would be artificial to divorce his Honour's remarks in their content from the life sentence for murder, particularly having regard to his observations concerning the facts underlying the killing of Mr. Lamb.

93 I do not see the legislation, in its use of the words "sentence concerned" and "when imposing the sentence concerned", to have drawn a line so narrowly as has been submitted on the applicant's behalf as not to have regard to what was said on the same occasion and plainly in reference to the subject matter of the murder sentence.

94 Although his Honour noted that he had already sentenced the prisoners to imprisonment for life on the charge of murder and before he passed to the imposition of the sentences on the charge of conspiracy to murder and thence to the sentences on the remaining charges, I do not understand his Honour to have been dealing with the charges in discrete compartments. It was one sentencing exercise. Indeed, his Honour was giving as his reasons for not fixing a non-parole period on the shooting offences his belief that the offenders should spend the rest of their lives in gaol and there die. Plainly, he, considering the prisoners' ages, was not talking only of the 15 year sentences at that point. His Honour then made that statement which the Crown categorises as the non-release recommendation. I would conclude that by using those words his Honour made a non-release recommendation and made it in respect of both of the sentences of life imprisonment he imposed and that what he said, with two exceptions, related to both life sentences.

95 His Honour's closing remarks in which he suggested that no clemency or mercy should be extended to the offenders should they seek it, were however made with specific reference to their treatment of Mrs. Morse when she begged for her life. His Honour suggested that, in the event of an application on grounds of clemency or mercy by the prisoners, they should not receive it. Those remarks do not appear to have been related to the life sentence imposed for murder. Nor do his Honour's remarks concerning the cruelty with which Mrs. Morse had been treated.

96 I would not regard them as attracting the operation of subsection (10A) on consideration of determining the life sentence for murder.

The special reasons

97 I consider that it is not enough that the reasons advanced be special in some general or abstract sense. They must be such as justify the making of the determination having regard to the applicable matters referred to in subsections (4A), (9) and (10A), so that the discretion reposing in the court to set a minimum term and an additional term, rather than to decline to determine those terms, might be exercised. Without such special reasons, the person is not eligible for such a determination and, hence, the opening words of subsection (4) which require the application to be duly made, are not satisfied.

98 The sufficiency of the reasons advanced here to meet the statutory description is to be ascertained with regard, in particular, to the circumstances of the offences and their gravity. Since this is a sentencing exercise, regard needs to be paid to all the offences (Regina v. Pearce (1998) 194 CLR 610) and to whether a "life means life" sentence would ordinarily be called for for crimes like this (Harris (supra)).

99 Even on the appellant's submission, the appropriate head sentence remains that of life. The remaining question is, having regard to the matters referred to in those subsections to which I have referred whether there are special reasons which would justify fixing a minimum term such that subject to the appropriate determination by the Parole Board or other relevant authority, the applicant would not necessarily have to serve that sentence of imprisonment for the whole of his life, although it is possible he will so have to serve it.

100 It was submitted that the special reasons why there should be a re-determination to permit the imposition of a minimum term were:-

(1) Parity with the treatment of Crump.

(2) The almost 27 years the applicant has spent in custody and his youth at the time the offences were committed.

(3) The extent of his rehabilitation and the low risk of recidivism.

(4) That the crime of conspiracy to murder has had the applicable maximum sentence at law reduced to a maximum term of imprisonment of 25 years.

Parity with Crump

101 As will appear from what I have already said, the statutory regimes applicable to the consideration of the sentences of Crump and Baker from the point of view of their respective applications, are different.

102 Whatever effect might have had to be given by McInerney, J. to the recommendations of the trial judge, I am bound to proceed under the section as it is applicable to the consideration of this application and to my functions under the section. I have already referred to the factual differences. The applicant gave evidence before me of the circumstances of his killing of Mr. Lamb. He referred to obtaining the rifle for the purpose of robbing Mr. Lamb, that he got out of his vehicle and then loaded the rifle, yelled at Mr. Lamb and, when he sat up, the applicant pulled the trigger and shot him through the neck. He intended to kill Mr. Lamb, but he says he still doesn't know why. When he, later in evidence, asserted that he didn't mean to kill Mr. Lamb, however, I understood him to mean that he did not have that intent until determining to pull the trigger. He asserts that he had intended to take the loaded rifle to scare the victim.

103 For myself, I see no basis to compare the different factual situations such as would result in a favourable finding to the applicant on the basis of parity. In any event, the legislation requires that I treat his application differently to the way in which McInerney, J. was required to treat the application of Crump. It is not possible to adjust the result by reason of some analogy with the sentencing principles referred to in Regina v. Lowe (1984) 154 CLR 606 to provide for some outcome that the section would not otherwise permit to be achieved.

104 It is only if I should conclude that it is open to me under the section and appropriate by reason of some parity or fairness doctrine on the facts that a determination would be justified in this applicant's circumstances, because of what has occurred in respect of the co-offender, that I could regard that reason as special. Even taking that reason in combination with the other reasons, I do not regard it as having the necessary character.

Recidivism

105 As to the risk of recidivism, I was provided with statistics and the observations of the Australian Institute of Criminology in respect of homicides in Australia between 1992 and 1993, which became Exhibit 3 and the evidence of Dr. Lucas. It may be taken that the statistical risk of recidivism is very low and, for the reasons that I will give when discussing the question of rehabilitation, that the particular prospect of the applicant achieving rehabilitation such as to minimise danger to the community and personal recidivism, is very high but nonetheless, considering the culpability involved in the offences, and that in the light of the matters the section requires me to consider, I conclude that matter could at best be considered as context to the rehabilitation referred to. It is plainly not special in itself.

106 As to rehabilitation even in that context, the Court of Criminal Appeal in The Queen v. Garforth (unreported, 23 May 1994) concerning crimes so appalling and surrounding circumstances so grave as to parallel these, held:-

"There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty."

107 There, their Honours were referring to a sentence of life imprisonment, never to be released, in the context of the submission that, if there was some prospect of rehabilitation, that should mitigate against such a sentence being imposed. It is apparent their Honours were holding that in the cases to which they referred the prospect of rehabilitation had so little role to play compared with the community's interest in retribution and punishment that, notwithstanding that at some point in an offender's post-sentence career, the offender might be said to be fully rehabilitated and present no risk of recidivism, nonetheless such an offender should remain in custody until death.

Rehabilitation

108 The evidence as to rehabilitation prospects was not, to any real extent, challenged and was very powerful.

109 The evidence before me of Ms. Alysan Pender, which was not only in accord with the evidence she gave before Sully, J., but which went further to give unqualified support to the applicant's application, went so far as to suggest that within gaol, at least in recent years, the applicant's conduct has been absolutely exemplary, with no suggestion of any conduct as would pose a risk to the community. The applicant also has asserted in his evidence, his good behaviour in gaol, notwithstanding the onerous and sometimes provocative circumstances of his confinement and the restrictions and frustrations arising from his lack of progression within the system because of his indeterminate sentence.

110 He has asserted that he tried as best he could to behave as a peacemaker in the prison system even when assaulted. His evidence in this regard is corroborated by the official reports. He has given evidence he would wish to return to the community after a long time, a number of years, given that he is not fit to be released from prison, at present as he recognised he is institutionalised.

111 Dr. Lucas gave evidence in accord with various reports furnished by him that he was sure the applicant could adjust to being within the community if given a significant period of assistance, but that he has accepted his sentence uncomplainingly and has shown, for many years, a consistent attitude of remorse and insight. He said that if the applicant was given a good opportunity and proper management in prison and good planning for release, the applicant's prospects in the community were good and he did not present a significant threat to the community. He was of the view that Mr. Baker could go into the community without re-offending violently. He referred to Mr. Baker's aims to "live quietly somewhere, pick up some old interests, grow vegetables, fish and largely mind his own business". This would involve Mr. Baker being given the opportunity to be reclassified and properly prepared for release.

112 Christine Drayden-Thompson, who had known the present applicant for nine years as a forensic psychologist, and who had tested the applicant, gave evidence which accept entirely supported his contentions as to his exemplary behaviour within the prison system, his performance as an excellent worker, a counsellor and as a person who had achieved a great deal by way of rehabilitation such that his prospects of recidivism were very low.

113 The report of the Serious Offenders' Review Council, Exhibit C, which report includes the applicant's custodial history and reports on the incidence of that history throughout the entire period during which he has been detained, does not make, to me, any recommendation as to what appropriate course might be taken. It comments as follows:-

"In the event that the Supreme Court grants Baker's application for the re-determination of his indeterminate sentence, then the Serious Offenders Review Council will develop a plan for his management during the remainder of any minimum term imposed. If and when appropriate, Baker will be progressively reduced in security classification leading ultimately to his inclusion in unsupervised external leave programmes in preparation for his eventual return into the community.

In preparing and submitted this report, the Review Council has had regard to the matters to be considered under s.62AA of the Correctional Centres Act 1952."

114 The effect of the material is such as to have shown that in recent years, at least, Baker's prison record confirms the views held of him by Ms. Pender, Dr. Lucas and Ms. Drayden-Thompson.

115 A supplementary report dated 17 August 1999 annexed reports dealing with the further management of the applicant and, in particular, reports from Ms. Pender and Ms. Drayden-Thompson, all of which were favourable on these aspects of rehabilitation and recidivism. The Council on that occasion commented:-

"The Council re-iterates its comments made in its earlier report to the Supreme Court dated 14 April 1998.

Baker has continued to behave himself while in custody. He has endeavoured to use his time constructively and has demonstrated personal development throughout his period of incarceration.

In preparing and submitted this report, the Review Council has had regard to the matters to be considered under s.62AA of the Correctional Centres Act 1952."

116 Additional material was provided by the Serious Offenders' Review Council comprising further reports from Ms. Pender, from a drug and alcohol worker, including Assessment Committee notes and a report from the a Manager of Industries at Grafton Correctional Centre, together with two minutes of Council meetings.

117 There is nothing in that material which would have any adverse effect on the application.

118 For the applicant, a notice of reply to the statement of facts and a supplementary notice were filed. With that notice was included valuable material comprising the reports of Dr. Lucas, Dr. W. John Taylor, Dr. William Barclay, Ms. Drayden-Thompson, references and achievement awards. The supplementary notice provided reports of 1999 from Ms. Pender, Dr. Lucas, Ms. Drayden-Thompson, Mr. Lancaster and Mr. Northey, the Manager, Centre Services and Employment. It also provided a transcript of Ms. Pender's evidence on the earlier re-determination application.

119 All of this material commands the acceptance of the applicant's senior counsel's submission that the applicant has become rehabilitated to the point that he is a very different man to that which he was when the offences were committed, and a better one.

Conclusion

120 It was submitted on the applicant's behalf:-

"He was then a violent man who had himself been subjected to violence, an anti-social man, relatively young (25 years of age) with a poor record and a drinking problem: a classic 'loser'. He is now an insightful individual, who has been rehabilitated during 26.5 years of imprisonment, a peaceful man who contributes to society as best he is able, and a model worker and prisoner. To the extent he can, he has redeemed himself.

It would be a heartless community which insisted that such a man be kept in custody forever. To do that would discourage not just the individual, but others who have done extreme harm and then seek redemption. And it would give him no prospects, nothing to work towards, and would leave him stalled in the prison system.

Nothing Baker or (sic) the court can do will undo his crimes or their consequences. He has served a very long period of imprisonment, unusually he has benefited from it (in a manner and to an extent such that the Prisons Department can take pride in its work), and he should be allowed to live the last years of his life under supervision in the community. On the evidence, the attendant risks are extremely low.

Finally, it is acknowledged and stressed that nothing the court does will secure Baker's release. Rather, it will give rise to the prospect of that happening should the final arbiters see fit."

121 These submissions were made in the context of the wider submission that:-

"What must be done is to impose a sentence on Baker which is appropriate for the crimes he has committed, the court having regard to its knowledge of the man as he now is, as opposed to the man that he was, in November 1973."

122 It may be accepted, in the light of all that material, that with proper management within the prisoner community prior to any release, the risk of future dangerousness or recidivism is very low. Indeed, the prospect of rehabilitation is very good. However, they are not the only matters to which I must give regard and, indeed, when one has regard to the statutory requirements in the context of the appalling nature of the applicant's crimes and their surrounding circumstances, I an unable, even taking into account that the offence of conspiracy to murder is now only punishable by a maximum term of imprisonment for 25 years, to conclude, considering all the reasons said to be special individually and together, that the special reasons criteria under the Act have been met.

123 Having regard to the appropriateness of the sentence that should be passed, now, on this applicant for the crimes he has committed even with the knowledge of the man he now is, applying to the consideration of this application the approach referred to in Cribb (supra) and the other authorities to which I have referred, but having regard to the statutory criteria as are applicable to an application commenced when this application was, I conclude that, notwithstanding the reasons asserted, the applicant is ineligible for the determination sought.

124 I see no basis upon which I should give a direction either under subsection (8)(a) or (b), even if I had power to, since I cannot envisage, at present, what special reasons may come to exist in the future, and when, they might arise and the applicant's rehabilitation is such that I would not make an order foreclosing consideration by another judge, some time in the future, of some such powerful exigency as might have the requisite character.

125 It is not clear to me that holding, as I have, that the applicant, by reason of failing to meet the requirements of subsection (3) is not eligible to make such an application, that I should decline to make a determination, since subsection (4) would only allow me to take that course on an application duly made for the determination.

126 I therefore declare that the applicant is not eligible to make the application.

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Last Modified: 05/28/2001

Citations

Regina v Baker [2001] NSWSC 412

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2

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R v Towner [2002] NSWSC 951

Cases Cited

4

Statutory Material Cited

5

R v Harris [2000] NSWCCA 469

Regina v Petrinovic [1999] NSWSC 1131

Pearce v The Queen [1998] HCA 57

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CITATION:	REGINA v. BAKER [2001] NSWSC 412
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC No. 12 of 1997
HEARING DATE(S):	30 June 2000; 7 September 2000; 14 November 2000
JUDGMENT DATE:	25 May 2001
PARTIES :	REGINA v. BAKER, Allan
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Crown: C.K. Maxwell, QC. App: I.D. Temby, QC.
SOLICITORS:	Crown: S.E. O'Connor App: Brezniak Neil-Smith & Co.
CATCHWORDS:	Criminal law - life sentences - application for re-determination - original offences of murder not worst class of case - statutory maximum for other offence reduced from life to 25 years - circumstances of all offences - views of trial judge - non-release recommendation - effects of amendments to s.13A - special reasons justifying determination - co-offender's sentences re-determined under provision before relevant amendments - facts different - no parity required - marked rehabilitation - no special reasons considering culpability - applicant not eligible for re-determination - power to direct applicant not re-apply does not arise.
LEGISLATION CITED:	Sentencing Act 1989 Sentencing (Life Sentences) Amendment Act 1993 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Sentencing Legislation Further Amendment Act 1997
CASES CITED:	Previtera (1997) 94 A. Crim. R. 76 Harris [2000] NSWCCA 469 Petrinovic [1999] NSWSC 1131 Cribb (CCA, unreported 4 November 1994) Purdey (1992) 65 A. Crim. R. 441 Johnstone (Badgery-Parker, J., unreported 20 December 1992) Williscroft (1975) VR 292 Baker (CCA, unreported 23 May 1994) Kalajzich (1997) 94 A. Crim R. 41 Crump (CCA, unreported 30 May 1994) Pearce (1998) 194 CLR 610 Lowe (1984) 154 CLR 606 Garforth (CCA, unreported 23 May 1994)
DECISION:	Applicant not eligible for determination.