CCPR/C/112/D/1968/2010
vehicle after stealing several items of value from her, including two rings, a watch and her
ATM card. The authors later travelled to the town of Gosford, where they stole another
motor vehicle.
2.5
At the trial for those offences, three of the co-offenders, including both authors,
were said to be the main perpetrators of the assault and were tried jointly for the murder,
abduction and rape of Ms. J.B., although they pleaded not guilty to the charges of rape and
murder. On 21 June 1990, following a month-long trial, the authors were convicted of the
rape and murder of Ms. J.B.
2.6
The authors were tried as adults, but the Children (Criminal Proceedings) Act 1987
(NSW), applicable to the conduct of criminal proceedings against children, was complied
with and consideration was given to their age. The trial judge found, as a matter of fact, that
the rapes were carried out by Mr. Blessington and the third offender.2 The judge also found
that Mr. Elliott did not directly perpetrate rape. However he was charged and found guilty
of rape by virtue of the common purpose of the offenders. Culpability for the drowning of
Ms. J.B. was distributed equally between the two authors and the third offender. On 18
September 1990, Justice Newman of the Supreme Court of NSW (Criminal Division)
handed down sentences for the authors. Justice Newman took into account their youth and
the principles laid down in various cases regarding the sentencing of juveniles. However, he
determined that “the facts surrounding the commission of these crimes are so barbaric that I
believe I have no alternative other to impose upon both prisoners, even despite their age, a
life sentence. So grave is the nature of this case that I recommend that none of the prisoners
in this matter should ever be released”. In sentencing the authors, Justice Newman
commented that he found it to be a difficult task, because of their extreme youth and in
terms of the principles of law which he was obliged to apply.
2.7
At the time that the offences were committed in 1988, section 19 of the Crimes Act
1900 (NSW) provided that murder was punishable by mandatory life in prison for adult
offenders. That penalty was discretionary for juvenile offenders. At that time, a life
sentence did not mean for the term of a person’s natural life. The exact term of a life
sentence depended on other judicial and administrative processes. After 10 years had been
served, the person could apply to the executive for release on licence. In January 1990, that
scheme was abolished and replaced with a right to apply to the Supreme Court of New
South Wales for a determination of the life sentence after eight years had been served,. The
authors were sentenced on 18 September 1990.
2.8
Changes to sentencing legislation introduced in 1997, 2001 and 2005 successively
eroded and ultimately removed the right of the authors to seek a date for release. As a result
of those changes, the authors must serve 30 years of their life sentence before being
permitted to apply for a determination of their sentence. Upon making such an application
they must demonstrate special reasons to justify such a determination.3 Should a
determination be granted, the Supreme Court of New South Wales would be limited to
2
3
4
Namely, Mr. J., aged 22 at the time, and assessed by a psychiatrist as “mentally retarded”.
Schedule 1 of the Crimes (Sentencing Procedure) Act 1999:
2. Applications for determination of non-parole periods
(1) Subject to clauses 6 and 6A (2), an offender serving an existing life sentence may apply to the
Supreme Court for the determination of a term and a non-parole period for the sentence.
(2) An offender is not eligible to make such an application unless the offender has served:
… (b) at least 30 years of the sentence concerned, if the offender is the subject of a nonrelease recommendation.
(3) An offender who is the subject of a non-release recommendation is not eligible for a determination
referred to in subclause (1) unless the Supreme Court, when considering the offender’s application, is
satisfied that special reasons exist that justify the making of such a determination.