Minogue v Victoria  HCA 27
In a unanimous decision, the High Court has held that section 74AAA of the Corrections Act 1986 (Vic) did not prevent the plaintiff from seeking parole after a 28 year sentence.
On 27 March 1986 a stolen car containing explosives was detonated in Melbourne, near the Russell Street Police Station and the Melbourne Magistrates Court building. The explosion caused serious injuries to a number of people and the subsequent death of Angela Rose Taylor, who was a Constable in the Victorian Police Force. Constable Taylor was on duty at the court that day and was crossing the road on her lunch break when she was injured in the blast.
The plaintiff was charged and convicted of the murder of Constable Taylor before a jury in the Supreme Court of Victoria. The plaintiff was sentenced to life imprisonment with a non-parole period of 28 years in 1988. The plaintiff's non-parole period ended on 30 September 2016 and the plaintiff made an application for parole on 3 October 2016. On 20 October 2016 the Parole Board decided to proceed with parole planning and consider the plaintiff's suitability for parole.
On 14 December 2016 s 74AAA (the 2016 Amendment) was inserted into the Corrections Act. Sub-sections (1) to (3) provide:
The Board must not make a parole order under s 74 or 78 in respect of a prisoner convicted and sentenced (whether before, on or after this section comes into operation) to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless an application for the parole order is made to the Board by or on behalf of the prisoner.
The application must be lodged with the secretary of the Board.
In considering the application, the Board must have regard to the record of the court in relation to the offending, including the judgment and the reasons for sentence.
"Police officer" is defined by subsection (6) to mean a police officer:
(a) who, at the time the murder of that police officer occurred, was performing any duty or exercising any power of a police officer; or
(b) the murder of whom arose from or was connected with the police officer's role as a police officer, whether or not the police officer was performing any duty or exercising any power of a police officer at the time of the murder.
In considering an application for parole made by a prisoner to whom this section applies, the Parole Board would only be able to grant parole if the Board were satisfied that the prisoner:
(i) was in imminent danger of dying, or seriously incapacitated and, as a result, the prisoner no longer had the physical ability to do harm to any person; and
(ii) had demonstrated that the prisoner did not pose a risk to the community.
The evident purpose of the 2016 Amendment is to severely limit the circumstances in which parole may ever be granted to a prisoner to whom the section applies, such as the plaintiff, and effectively to force them to serve out their life sentence.
When it was enacted, the 2016 Amendment did not contain any transitional provisions. On 20 December 2017 section 127A was inserted into the Corrections Act stating that "to avoid doubt" section 74AAA applies to a prisoner convicted and sentenced as mentioned in s 74AAA(1), regardless of whether, before the commencement of those amendments, the prisoner had become eligible for parole, the prisoner had taken any steps to ask the Board to grant the prisoner parole or the board had begun their consideration.
In January 2017, before section 127A was enacted, the plaintiff commenced proceedings in this Court. The questions before the Court were limited to whether section 74AAA applies to the plaintiff.
In a unanimous decision the High Court held that section 74AAA did not apply to the plaintiff (Chief Justice Kiefel and Justices Bell, Keane, Nettle, Edelman in joint judgment and Justices Gageler and Gordon each in separate judgments in substantial agreement with the majority).
The majority judgment addressed a series of questions stated to the court by the parties in order to reach their final decision.
Is section 74AA capable of applying to the plaintiff in circumstances where, before the commencement of section 127, the plaintiff's non parole period had ended, the plaintiff had made an application for parole and the Board had made a decisions to proceed with parole planning?
The majority held that the question of what a successful parole application may require, is one to be answered in the light of whatever the legislation requires at the relevant time and the relevant time would be when the application for parole comes to be determined. The express provisions of section 127A(a) provides that section 74AAA applies to a prisoner in his position, therefore the answer to this question was yes.
Is section 74AAA capable of applying to the plaintiff in circumstances where it was not an element of the offence of which the plaintiff was convicted that the plaintiff knew, or was reckless as to whether, the deceased was a police officer as defined by s 74AAA(6)?
The majority held that the section expressly directs attention to offences committed before the section came into force and although there never has been and there is not now an offence having these elements, it is not a proper approach to construction to deny a provision any realistic operation. The answer to this question is yes and the exact sphere of operation is further addressed in the following question.
Is s 74AAA capable of applying to the plaintiff only if he was sentenced on the basis that he knew that, or was reckless as to whether, the murdered person was a police officer as defined by s 74AAA(6)?
The majority stated that "the critical issue is how it is to be established whether at the time of the murder the prisoner knew or was reckless as to whether the victim was a police officer performing duties or exercising powers of a police officer or whose murder was connected with his or her role as a police officer". The plaintiff argued that this requirement is established only if a prisoner was sentenced on the basis that he or she knew or was reckless as to whether the person murdered was a police officer within the meaning of section 74AAA(1) at the time the act causing death was committed. Whereas the defendant argued that the question is entirely one for the Board who may satisfy itself about a prisoner's state of mind at the relevant time by making such enquiries as it considers necessary and it could even disagree with a finding made by the court.
Section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) requires that "so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights". The human right to which the plaintiff relied on was those listed in section 10(b) of the Charter, which prohibits a person being "treated or punished in a cruel, inhuman or degrading way". However, the court did not find it necessary to determine whether section 32(1) could be applied: the natural reading of the section requires the Board to have regard to the record of the court in relation to the offending, including the judgement and reasons for sentence to satisfy itself as to the question of the prisoner's state of mind. The majority found the answer to this question to be yes.
The final question
Does section 74AAA(1) apply to the plaintiff?
The text of section 74AAA(1) points to the sentencing process therefore section 74AAA(3) requires the Board to have regard to the court record and sentencing remarks. In the case of the plaintiff the remarks of the sentencing judge contained no reference to the plaintiff's state of mind concerning the identity of the police constable who was killed. No particular person or class of person was targeted and this would seem to be required by s 74AAA(1) and (6). The majority held that "the plaintiff was not sentenced on the basis that he knew that the person murdered was a police officer within the meaning of s 74AAA(1) or that he was reckless as to that fact. Section 74AAA does not apply to him".
Since the judgment was handed down on 20 June 2018, s 74AAA has been amended so as to include the words "the Board is satisfied that" in subs 74AAA(1) so the section now reads:
(c) the Board is satisfied that the prisoner, at the time of carrying out the conduct that resulted in the police officer's death—
(i) intended to cause the death of, or really serious injury to, a police officer (whether or not the prisoner intended to cause the death of, or really serious injury to, any particular police officer); or
(ii) knew that the person whose death was caused by the conduct was a police officer; or
(iii) knew that it was probable that the death of, or really serious injury to, a police officer would be caused by the conduct
A specific provision overruling the application of the Charter of Human Rights on this section has also now been included in subs (9).
These amendments mean that s 74AAA is now applicable to the plaintiff, who is currently serving out the remainder of his life sentence with no likely prospect of parole.
The full decision is available here.
Bridgette Gorman is a Lawyer at Allens.