REGINA v Matthew James ELLIOTT and Bronson Matthew BLESSINGTON [2006] NSWCCA 305

Reported Decision : 164 A Crim R 208

New South Wales Court of Criminal Appeal

CITATION: REGINA v Matthew James ELLIOTT and Bronson Matthew BLESSINGTON [2006] NSWCCA 305

HEARING DATE(S): 30 March 2006

JUDGMENT DATE: 22 September 2006

JUDGMENT OF: Spigelman CJ at 1; Kirby J at 100; Howie J at 208

DECISION: 1 Leave to appeal out of time refused; 2 Leave to reopen the original appeal refused.

CATCHWORDS: CRIMINAL LAW – Appeal – Jurisdiction to reopen appeal – Where orders of previous appeal not perfected – Whether leave to reopen should be granted – To be determined by reference to the dominant consideration of avoiding a miscarriage of justice - CRIMINAL LAW – Appeal – Jurisdiction – Whether Court of Criminal Appeal can hear appeal from a recommendation that prisoner never be released – Whether recommendation a "sentence" – Where recommendation subsequently given effect by legislation – Recommendation not an "order of the court of trial" – Criminal Appeal Act 1912, s 2 - CRIMINAL LAW – Appeal – Against sentence – Life Sentence – Where recommendation that prisoner never be released – Where recommendation given subsequent legislative effect – Court cannot consider appeal on the basis that the consequences of the life sentence are significantly more onerous as a result of subsequent legislation – It would be an inappropriate exercise of judicial power to remove the legislative criterion upon the basis of which Parliament enacted constitutionally valid legislation - WORDS & PHRASES – "order", "order made by the court of trial", "sentence"

Child Protection (Offenders Registration) Act 2000 Crimes (Administration of Sentences) Act 1999: s 154A(3) Crimes (Life Sentences) Amendment Act 1989 Crimes (Sentencing Procedure) Act 1999: ss 21A, 44(5), 61; Sch 1 cll 2, 4, 7 Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 Crimes Act 1900: ss 19, 19A, 431B, 442, 463, 474P Crimes Amendment (Mandatory Life Sentences) Act 1996 Crimes Legislation Amendment (Existing Life Sentences) Act 2001 Crimes Legislation Amendment (Sentencing) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912: ss 2, 5, 6, 10 Criminal Appeal Rules 1952: rr 50A, 51, 52, 53 Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987: Sch 3 Periodic Detention of Prisoners Act 1981: s 24(1) Prisons (Serious Offenders Review Board) Amendment Act 1989 Prisons Act 1952: ss 60, 61 Sentencing (Life Sentences) Amendment Act 1989 Sentencing Act 1989: s 13A, 22P; Sch 2A, Pt 3 cl 8(1) Sentencing Amendment (Transitional) Act 1997 Sentencing Legislation Further Amendment Act 1997