Regina v Kevin Garry Crump BC9405043 PDF

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really difficult but incredible case to find that is fantastic to source in assessments. It could also be used for exam preparation but will be able to add to your notes....

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User Name: Anastasia Lazarus Date and Time: Sunday, 3 October 2021 3:59:00 PM AEDT Job Number: 154357019

Document (1) 1. REGINA v KEVIN GARRY CRUMP BC9405043 Client/Matter: -NoneSearch Terms: R v Kevin Gary Crump Search Type: Natural Language Narrowed by: Content Type AU Cases

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REGINA v KEVIN GARRY CRUMP BC9405043 Unreported Judgments NSW SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL MAHONEY JA, HUNT CJ AT CL AND ALLEN J 60080 of 1993 14 September 1993, 30 May 1994

Headnotes Criminal law and procedure — Sentencing — Application for re-determination of life sentences Appeal unanimously dismissed — Nature of original and appellate jurisdictions discussed — no ratio decidendi upon those issues In 1974, the appellant was sentenced to penal servitude for life on each of two charges, one for murder and the other for conspiracy to murder (the murder itself having taken place in Queensland). The objective facts of the case were extremely serious, and the trial judge expressed the view that the appellant should spend the rest of his life in gaol and there he should die. An application pursuant to s13A of the Sentencing Act 1989 for the determination of minimum and additional teens in lieu of both life sentences was refused, the judge (who had not been the trial judge) saving that it u as premature. The appellant appealed, submitting that the judge had erred in not making such determination. The Crown submitted that the judge was correct in not doing so, but not for the reasons which he gave; the Crown's argument was that the application should have been refused because the crimes fell within the worst category of cases for which the maximum penalty of penal servitude for life (in the sense of for the term of his natural life) was appropriate. The appeal was unanimously dismissed. (Per Mahoney JA and Allen J) The judge did not err in the exercise of his discretion to refuse the application, and was correct to refuse it. (Per Hunt CJ at CL) The judge correctly dismissed the application, although for the wrong reasons, as the crimes in their totality fell within the worst category of cases for which the maximum penalty was appropriate

Mahoney JA On 20 April 1974 Kevin Garry Crump was sentenced to two terms of life imprisonment. S13A of the Sentencing Act 1989 authorises him to apply to the Supreme Court "for the determination of a minimum term and an additional term for the sentence": s13A(2). Mr Crump applied to Loveday J for such a determination. The application was refused. He has, in accordance with s13A(12)(b) sought leave to appeal to this Court against his Honour's order. The matter has been argued as on an appeal. The issues raised by the appeal are of importance. They are, of course, important to Mr Crump: at least, the decision of the Court will be. They are also of importance to the public. It is important that the public know the principles on which the court acts in deciding whether a life sentence should be reduced in this way.

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This is an appropriate case in which to review the principles on which, in a case such as this, the court should act. The crimes and the extent of Mr Crump's criminality were serious indeed. The court has been furnished with, inter alia, detailed material of a statistical nature relevant to life sentences and to applications of this kind. In my opinion, it is desirable that, if possible, there be a clear appreciation of the principles on which applications under this and similar legislation are to be dealt with. It is, on any view, not appropriate that Mr Crump be released in the immediate future. The court has therefore taken time to examine in detail the material placed before it and has sought to achieve an appropriate statement of the principles involved. On 14 September 1993 the Court had the benefit of argument by Mr Barr QC for the Crown and Mr Hidden QC for Mr Crump. It reserved its decision. After the decision was reserved, the parties, on 14 October 1993, made further submissions to the Court. Subsequently, on 17 November 1993, while the Court was considering its decision, judgment was given in the matter of John Drew Leaver. During the appeal, reference had been made to (as it has been described) the power of a judge to provide for a term of more than twenty-five years imprisonment in a case in which the maximum sentence for the relevant offence has subsequently been reduced to twenty-five years. In the circumstances, the Court felt it appropriate to afford the parties the opportunity of making further submissions. On 15 December 1993, further information was provided to the Court by counsel for the Crown. The other person involved with Mr Crump, Mr Baker, made a similar application. That application has been pending. The application was refused. An appeal from that refusal was heard by a court presided over by the Chief Justice. That Court has now rejected Mr Baker's appeal. This Court has had the advantage of considering the judgments of the Chief Justice and of the other judges of the Court. 1. THE FACTS OF THE OFFENCES: In order to understand the orders made by Loveday J and the attack which has been made upon them, it is necessary to refer to the facts. The learned judge stated them as follows: "You and your co-offender, Alan Baker, had been in the area of Boggabilla in Northern New South Wales where you were employed as casual tractor drivers. Your employment ceased temporarily on 2 November 1973 and you and Mr Baker went to Goondiwindi in Queensland where you purchased a .308 rifle. From there you came back to the Narrabri area where you murdered a man, Ian James Lamb, who was in the area seeking casual employment. The murder was motivated by a need, as you saw it, for money. You obtained a paltry $20 or thereabouts. It is heartbreaking that a man's life should have been taken for so little. On the day on which Mr Lamb's body was found you and Mr Baker waited in the vicinity of the Morse homestead until the males had left and the children had left for school. I suppose one must be thankful at least that the children were not there. You entered the homestead and overpowered Mrs Morse, stole two rifles and kidnapped the lady. Mr Baker was a man who knew his way around the house having been employed by the Morse family the previous year. You then took this lady, gagged and bound and raped her on at least two occasions over a period of some days, finally executing her in a manner reminiscent of a firing squad. You, it was who shot her using one of the rifles taken from the homestead. The lady's body was then hidden in a creek nearby and you departed for Cairns, coming back into New South Wales some days later. Near Newcastle you were driving a stolen car when you were chased by police officers. During the course of this chase, you drove the car and Baker, who was the marksman fired at the police telling you from time to time to slow down so that he could get a better shot. One police officer was wounded in the head and it was very fortunate indeed that he was not killed. The chase eventually resulted in your apprehension. Your trial, following pleas of not guilty, resulted in your convictions on the two matters involving the murders and on charges arising out of the police chase." His Honour said: "... you were convicted and sentenced to two sentences of penal servitude for life, the first for the murder of the man Lamb and the second on a charge of conspiracy to murder Mrs Morse. You were also sentenced to two terms of fifteen years penal servitude on charges arising out of the police chase. You had not been charged with the substantive crime of the murder of Mrs Morse because that murder and the preceding rapes occurred in Queensland." Anastasia Lazarus

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His Honour's statement of the facts does not convey completely the extent of the criminality involved or of the suffering imposed upon Mrs Morse before her murder. During argument, this Court has been referred to the more detailed account of the evidence at the trial and other matters relevant to what occurred. I shall refer subsequently to the relevance of such matters to the application now before the court. It is sufficient to say that, in my opinion, in order to understand and evaluate the issues to be determined in the application, it is proper to know of and to have in mind the callousness and brutality of what was done to Mrs Morse. Commonsense apart, such matters may affect, amongst other things, what deterrence requires, the likelihood of rehabilitation, and the extent to which that has been achieved. 2. THE LEGISLATION: Mr Crump was sentenced, in respect of the murder and the conspiracy to murder, to imprisonment for life. The sentences are each "existing life sentences" within s13A. The section provides that a person serving such a sentence may apply to the court for the determination of a minimum and an additional term for the sentence. The court may either set a minimum and an additional term or "decline to determine a minimum term and an additional term": s13A(4). S13A(9) provides: "13A(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 s463 of the Crimes Act 1900 and of the practice relating to 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) any relevant comments made by the original sentencing court when imposing the sentence; 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." In the course of argument, questions have arisen as to the nature of the power exercised by the court in determining such an application and as to the considerations which may and may not be taken into account in deciding the application. Having regard to what has been said, in argument and otherwise, I shall state my views in relation to each of these matters. I have the misfortune to differ from my brethren in this appeal as to the nature of the power which the Court is here exercising and consequently, I think, as to some of the considerations to be taken into account in deciding the application. I see the discretion to be, in a sense, a two stage discretion: the Court must first decide whether it should substitute (as I shall describe it) a fixed sentence for a life sentence; and (if it should) what that sentence should be. This is of significance because, in my opinion, the considerations to be taken into account in deciding the first question are not the same as those to be taken into account in deciding the second. The first question, the question which we are now deciding, does not, in my respectful opinion, involve a resentencing process or the like. If we were to decide to substitute a fixed sentence, we would then enter upon something of the nature of a resentencing process. And, of course, in deciding the first question, we must take into account that, if there is to be a fixed sentence, there will have to be a resentencing process. But the first question is different. It involves, of course, a decision as to the effect of his release, present or future, upon the classical considerations: the need to punish, the need to mark publicly society's disapproval of what he did, the need to deter further offences by him and others, and the need to rehabilitate him. But it goes further. I shall take three things by way of example. The Court may and should consider what a life prisoner will be likely to do if he is released. In Veen v The Queen (No 2) (1988) 164 CLR 465, the High Court considered how far a sentence may be fixed so as to prevent the Anastasia Lazarus

Page 4 of 37 REGINA v KEVIN GARRY CRUMP BC9405043 prisoner again committing relevant offences. As, I think, it there indicated, it may not sentence so as to achieve mere preventive detention, but the likelihood of future offences may be taken into account, provided always that the sentence is not disproportionate to the instant offence and the circumstances of the case. In my opinion, it may be that, in deciding whether a fixed sentence should be given, the Court may go a step further. The prisoner is already sentenced to prison for life: the question is whether his sentence should be changed. It is arguable that, in deciding that question, the Court can decide whether the likelihood of further offence is so great that the life sentence should not be changed. Thus, if it should appear that he is (to use an older term) a sociopath given to serial murder, that may be taken into account as such in deciding that he (as a means of preventive detention) remain in gaol for his life. It is not necessary in this case to decide that question: but it may require consideration in an appropriate case. The second thing involves the basic effectiveness of gaol as a means of controlling criminality and of dealing with it. Imprisonment in a gaol is the long accepted conventional method of achieving the four main ends of criminal justice: to these I have referred. It is a method the efficacy of which is, of course, not high: it has been used, perhaps, because it is the least worst of the methods which have to date been available. There are other ways of achieving those ends. This is not the place to canvass them. But when a Court comes to consider whether a prisoner should be kept in gaol for life or should (now or later) be released, the Court may and, in my opinion, should consider - to use a common phrase - whether there is now a better way. The third thing involves a matter of fundamental justice. Mr Crump was, when sentenced, in his twenties. If he remains in gaol for life, he may remain there for forty years or more. On such an application as this, the Court must consider whether, whatever be the offence, such a length of imprisonment can be justified. (I put aside sociopathic offenders, serial killers and the like). It may be that it cannot. Subject to the Court being satisfied as to future offences, there must, I think, be a limit to what justice can require. Though considerations of this kind may arise, in a different form in a resentencing process, they arise in dealing with this first stage. There is here a broader review, one aspect of which includes issues of policy in sentencing. Life sentences are still sentencing options under the Crimes Act. But, in the present case, the social utility of them may be reviewed and their efficacy and the social justice of them may be examined. Subject to these matters, what is here in issue is the exercise of the primary power given to the court by s13A(4), namely, the power to determine whether it will or will not substitute (as I shall describe it) a fixed term for the life sentence. That power, it is agreed, is a discretionary power. The term "discretion" may have a number of different meanings: see, eg, the identification of different meanings of the term in Pattenden, "The Judge, Discretion, and the Criminal Trial", passim. The present discretion involves, amongst other things, the review of the relevant considerations, the determination of such issues of fact as arise in relation to them, and the evaluation of the effect of them for the present purpose. In counsel's written submissions, in argument and otherwise, questions have arisen as to the relevance of certain matters of fact and certain considerations. Some of these are referred to by Hunt CJ at CL and by Allen J. In determining what is required by the exercise of the primary discretion given by s13A(4) two things at least are to be borne in mind. First, s13A(9) indicates some of the matters which are to be taken into account. The subsection indicates that the court "is to have regard to", ie, must have regard to, the four matters as specified in para(a)para(d). That requirement is, of course, ambulatory in the sense that it requires the court to have regard to such of those considerations as exist and as are, in the particular case, relevant to the exercise of that discretion. Thus, in a particular case, there may not be any "relevant comments" of the sentencing court; and the "knowledge of the original sentencing court" as referred to in para(a) may be of no significance in the exercise of the instant discretion. But regard must be had to those matters insofar as they exist and are relevant. But the matters specified in para(a)-para(d) are not an exhaustive statement of the considerations to be taken into account. The subsection provides that the court "may have regard to any other relevant matter". Accordingly, subject only to the limitations of para(a)-para(d), the discretion is a general or unlimited discretion. This is of importance in respect of the second matter. It is well settled that, in the case of a statutory discretion, "the permissible considerations, if not otherwise specified, may be identified by reference to the scope and purpose of the legislation": see Jago v District Court of New South Wales (1989) 168 CLR 23 at 76, per Gaudron J. See also O'Sullivan v Farrer (1989) 168 CLR 210 at 216. But where the discretion is not limited but relevantly general, a consideration may be held outside the scope of the

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Page 5 of 37 REGINA v KEVIN GARRY CRUMP BC9405043 discretion only if warrant can be found for doing so. In one of the seminal decisions in this area of the law, Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, Dixon J: at 504-505; said: "The statutory provision which gives to the Commission the discretionary power of consenting to the transfer contains no statement of the matters which the Commission is to take into consideration in exercising the power. It contains a prohibition against transferring an irrigation farm lease except with the consent of the Commission and proceeds to say that the grant or refusal of the application for consent shall be entirely in the discretion of the Commission. But there is no positive indication of the considerations upon which it is intended that the grant or refusal of consent shall depend. The discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view ... But, though the discretion is neither arbitrary nor completely unlimited, it is certainly undefined. I have before remarked on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power: Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757, 758. But there must be some warrant in the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon. What warrant have we in point of law for saying that the considerations governing the Commission's refusal of consent to the transfer to Carbone can be material to no purpose falling within the scope and object of the Commission's discretion?" Dixon J was there referring to "an administrative discretion" but what he said was, in Jago and in O'Sullivan v Farrer applied to judicial discretions. Accordingly, if a particular consideration is said to be extraneous to the discretion, it will be so only if there be "some warrant in the provisions, the nature or the subject matter of the statute" sufficient to lead to that conclusion. 3. THE ISSUES: S13A(12) provides that "the Criminal Appeal Act 1912 applies to such an appeal in...