Court/Judicial body: Supreme Court of New South Wales
Citation:  NSWCCA 305
Date: 22 September 2006
Instrument(s) cited: Crimes Act 1900 Crimes (Life Sentences) Amendment Act 1989 Prisons (Serious Offenders Review Board) Amendment Act 1989 Sentencing (Life Sentences) Amendment Act 1989 Sentencing Legislation Further Amendment Act 1997 Sentencing Amendment (Transitional) Act 1997 Crimes Legislation Amendment (Sentencing) Act 1999 Crimes (Sentencing Procedure Act) 1999 Crimes (Administration of Sentences) Act 1999 Crimes Legislation Amendment (Existing Life Sentences) Act 2001 Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) 2005
Background: In 1990, Matthew James Elliott and Bronson Matthew Blessington were sentenced to life imprisonment for their role in the violent sexual assault and murder of a young woman. At the time of the crime, Elliott was 16 years old and Blessington was 14 years old. Following their conviction, the trial judge wrote the following in his decision: “So grave is the nature of this case that I recommend that none of the prisoners in this matter should ever be released.” At the time of sentencing, this recommendation had no legal effect, and the appellants were subject to a sentencing regime whereby an individual sentenced to life imprisonment had the opportunity to have his or her case reviewed in the future by a Release on Licence Board, who could recommend the release of such individual on license. In 1992, the appellants appealed to Court to challenge their sentences and seek, among other things, to have the recommendation quashed. The Court dismissed the appeal, holding that the sentences provided to the appellants were within the permissible sentencing range for a murder conviction and that the Court did not have the jurisdiction to review the recommendation since it had no legal effect, was not an order of the trial court and was thus not a “sentence” subject to court review. Subsequently, the Australian legislature amended the criminal sentencing statutes a number of times in ways that changed the sentencing regime to provide that an individual sentenced to life in prison could, after serving 30 years, apply to the Supreme Court for release from prison provided that the Parole Authority had determined that such individual “(i) is in imminent danger of dying, or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, and (ii) has demonstrated that he or she does not pose a risk to the community,” and that as a result of such circumstances, the release of such individual is justified. These amendments retroactively gave legal effect to the recommendation such that each appellant is now subject to imprisonment for the term of his natural life, subject to narrow exceptions for release. The appellants appealed again to the Court in the present case, challenging the constitutionality of the legislative changes and seeking to either quash the “recommendation” or to have their life sentences replaced with determinate sentences.
Issue and resolution: Life imprisonment for juvenile offenders. Whether the legislative amendments which mean that offenders have no chance of release even in the case of full rehabilitation are lawful. The Court dismissed the appeal, holding that the legislative amendments at issue were brought forth by a constitutionally valid exercise of legislative power, which the Court would not review.
Court reasoning: The Court succinctly stated the issue as follows, “Whereas, at the time of sentence, it was possible that [the appellants] might one day be released on licence, it is now the case that, as a result of the legislation, [the appellants] will almost certainly never be released.” The Court noted that Australia’s constitutional system was built on mutual respect. The Court reasoned that because the legislative changes to the sentencing statutes were a valid exercise of legislative authority, it would not exercise discretion to review such legislation. To do so, according to the Court, would frustrate the intent of the legislature.
Dissenting opinion: Justice Kirby dissented from the majority opinion, stating that the Court should review whether the legislative changes resulted in sentences for the appellants that are manifestly excessive, given the youth of the appellants at the time they committed their crime. Justice Kirby stated that the appellants had not had an opportunity to address the appropriateness of the recommendation, resulting in a possible miscarriage of justice, which the Court should review. Impact: The appellants submitted a complaint against Australia to the United Nations Human Rights Committee. In 2014, the Committee decided that Australia had violated Article 7 (prohibition of cruel and unusual punishment); Article 10, paragraph 3 (aim of the penitentiary systems should be reformation and social rehabilitation); and Article 24, paragraph 1 (no life imprisonment for criminal offenders below the age of 18) of the International Covenant on Civil and Political Rights (CCPR/C/112/D/1968/2010 Communication No. 1968/2010). The Committee determined that Australia had an obligation, as a party to the International Covenant, to provide the appellants with an effective remedy, including compensation and revision by the Australian legislature of Australia’s criminal sentencing statutes to comply with the International Covenant on Civil and Political Rights.
Link to full judgement: http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2006/305.html