High Court rejects challenge to "truth in sentencing" law

Today the High Court of Australia delivered judgment in Crump v NSW in which the Court rejected a challenge by Kevin Crump to section 154A of the Crimes (Administration of Sentences) Act 1999 (NSW).

In 1974 Crump and a co-offender were sentenced to life imprisonment for murdering Ian Lamb, and for conspiring to murder Virginia Morse.  The sentencing judge recommended that Crump never be released.  At the time he was sentenced, that recommendation had no statutory force and it was open to Crump to apply for, and to be, released on parole.   

As a result of subsequent amendments to the sentencing regime dealing with “truth in sentencing” Crump applied for a re-determination of his sentence. Ultimately in 1997 McInerney J made a re-determination with the effect that Crump was required to serve a minimum sentence of 30 years in prison.  In accordance with the parole system in force at that time, Crump would then have been eligible for parole. 

Following that re-determination by McInerney J, section 154A of the Crimes (Administration of Sentences) Act 1999 was enacted.  This section provides the Parole Authority with the power to release a prisoner the subject of a “not for release” recommendation, but only if the prisoner lacks the physical ability to harm any person, or is in imminent danger of dying, and in addition poses no risk to the community.  Crump did not satisfy these conditions. 

The effect of section 154A was that, whereas at the time of the re-determination of his sentence he would have been eligible for parole, section 154A meant that he could not be released, except in limited circumstances that did not apply to him. 

Crump challenged the law on the basis that it had the effect of altering or detracting  from rights or entitlements created by, as distinct from existing independently of, the orders of the Supreme Court, and therefore contravened the so-called Kable doctrine.

The High Court unanimously rejected this challenge.  It held that the redetermination of the sentence provided the factual basis upon which the statutory system of release on parole then operated.  Section 154A imposed strict limiting conditions upon the exercise of the executive power to release on parole offenders who were the subject of a non-release recommendation. While it altered a statutory consequence of the re-determined sentence, it did not alter the legal effect of the sentence itself.  The controversy that had been quelled by the re-determination was whether a sentence providing for a minimum term should be made, and if so upon what terms. The minimum term marked the time at which the plaintiff could apply for parole, but it said nothing about the criteria for a grant of parole or the plaintiff's prospects of success in obtaining it.  The responsibility of the executive branch of government (via the Parole Authority) for the future of the plaintiff thereafter remained regulated by the statutory parole system, as amended from time to time.