Crimes (Sentencing Procedure)
Amendment (Existing Life Sentences)
Bill 2005

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The Crimes (Life Sentences) Amendment Act 1989 and the Sentencing (Life
Sentences) Amendment Act 1989 provided, as part of the “truth in sentencing”
regime, that persons sentenced to life imprisonment are to serve that sentence and are
not eligible for early release. Offenders sentenced to life imprisonment before the
present regime was established were eligible to be released on licence.

For existing offenders, the regime establishes a procedure by which an offender can
apply to the Supreme Court for a redetermination of his or her original sentence,
allowing the Supreme Court to replace the life sentence with a sentence for a fixed
term and, in particular, to set a non-parole period after the expiry of which the Parole
Board can (but need not) release the offender on parole. For those existing offenders
who were subject to a recommendation by the sentencing court that he or she should
never be released, the legislation, as subsequently amended, provides:

(a) that the earliest time at which an existing offender can apply for a
redetermination is 30 years after the original sentence commenced (at first a
period of 8 years applied), and

(b) that, on a redetermination, the Supreme Court cannot set a fixed term after
which the offender would be eligible for automatic release, and

(c) that if a non-parole period is fixed on a redetermination, parole cannot be
granted after the expiry of that non-parole period except in limited
circumstances.

In 1997, the Sentencing Amendment (Transitional) Act 1997 was enacted to apply
changes to the rules for redetermination of existing life sentences to pending
applications that had not been determined at that time. In a recent decision of the
Supreme Court (Regina v Bronson Mathew Blessington [2005] NSWSC 340), it has
been held that the current rules for redetermination do not apply to applications for
redetermination that were made before 8 May 1997 and are still pending before the
Court. The decision also canvassed the possibility that those applicants (and any
others who have not yet had their application determined) might now be able to
appeal the sentencing court’s recommendation that they never be released and
thereby be excluded from the application of the current regime for redetermination
of those “never to be released” offenders.

The object of this Bill is to amend the Crimes (Sentencing Procedure) Act 1999 and
the Crimes (Administration of Sentences) Act 1999 so as to ensure that the current
regime for redetermination of existing life sentences of “never to be released”
offenders:

(a) extends to all of those offenders whose original sentences have not yet been
redetermined (including the future determination of the application the subject
of the above Supreme Court decision), and

(b) applies to those offenders even if the original non-release recommendations
are now appealed.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on the date of assent.

Clause 3 is a formal provision that gives effect to Schedule 1 (Amendment of Crimes
(Sentencing Procedure) Act 1999).

Clause 4 is a formal provision that gives effect to Schedule 2 (Amendment of Crimes
(Administration of Sentences) Act 1999).

Schedule 1 Amendment of Crimes (Sentencing
Procedure) Act 1999
Schedule 1 [1] amends the definition of non-release recommendation in clause 1 of
Schedule 1 to the Act so as to ensure that an existing life sentence within the meaning
of that Schedule does not cease to be the subject of a non-release recommendation
because the recommendation is, or has at any time been, quashed, set aside or called
into question.

Schedule 1 [2] effects minor law revision.

Schedule 1 [3] amends transitional arrangements in clause 21 of Schedule 2 to the
Act to give effect to the object set out in the Overview relating to pending
applications for redetermination.

Schedule 1 [4] is a consequential amendment.

Schedule 2 Amendment of Crimes (Administration
of Sentences) Act 1999
Schedule 2 [1] amends section 154A of the Act so as to ensure that the references in
that section to a non-release recommendation pick up the amendments that are from
time to time made to the definition of that expression in Schedule 1 to the Crimes
(Sentencing Procedure) Act 1999, including in particular the amendment made to
that definition by Schedule 1 [1] to the proposed Act.

Schedule 2 [2] is a consequential amendment.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

---

[Index] [Search] [Download] [Bill] [Help]