Samuel Leonard Boyd is an Australian multiple murderer from New South Wales, currently serving 5 consecutive sentences of life imprisonment without the possibility of parole for the murder of 4 people and the malicious wounding of 1 between September 1982 and April 1983.

Boyd emigrated from Scotland with his family at age 11.

First murder: September 1982

Boyd stabbed Rhonda Celea, a young married woman with two children, to death while was working as a pest controller at her house at Busby.

Glennfield Massacre: 22 April 1983

In the early hours of the morning, Boyd beat Gregory Wiles, to death with a hammer. Boyd later went to a school for handicapped children in Glenfield. He forced the three woman supervisors, Helen Hartup, Patricia Volcic and Olive Short, to undress, and then proceeded to threaten them and made them sexually abuse each other before stabbing Hartup and Volcic to death. Boyd never sexually assaulted the women himself.

Arrest, Trial and Sentencing

Boyd was arrested by special operations police on 22 April 1983, the day of the Glenfield massacre.

In January 1985, Boyd was convicted on four counts of murder and one of malicious wounding by a jury, and was sentenced to 5 consecutive terms of life imprisonment without parole by Chief Justice O'Brien. Boyd unsuccessfully appealed against his convictions.

In 1994 Boyd applied to have a minimum term determined, however Justice Carruthers refused to make a determination, calling Boyd's crimes "the worst category of murder". An appeal against this decision was dismissed on 3 November 1995, and it is expected that Boyd will die in custody.

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Supreme Court of New South Wales

Regina v Samuel Leonard Boyd

No. 60605/94

Sentencing - Redetermination of life sentences

[1995] NSWSC 129 (3 November 1995)

ORDER

Appeal dismissed

JUDGE 1
GLEESON CJ 

This is an appeal from a decision of Carruthers J under s13A of the Sentencing Act 1989. The appellant, who is serving five sentences of penal servitude for life, applied for a determination of minimum and additional terms.

Carruthers J declined to make such a determination, and the application was dismissed.

The crimes

2.  In January 1985, following a trial before O'Brien CJ CrD and a jury, the appellant was convicted of four offences of murder, and one offence of wounding with intent to murder. An appeal against the convictions failed. The appellant was sentenced to penal servitude for life in respect of each conviction. He had been in custody since 22 April 1983.

3.  At the time of his sentencing, the appellant was aged twenty nine. He had a long criminal record. He immigrated from Scotland, with his family, at the age of eleven, and came to the notice of police soon afterwards. He spent time both in juvenile training centres, and in an adult institution.

4.  The crimes for which the appellant was sentenced to penal servitude for life clearly fall within the worst category of case. It is unnecessary for present purposes to recount the appalling details. It suffices to describe them in summary form.


5.  In September 1982, whilst working as a tradesman at a home occupied by a young married woman and her two children, the appellant murdered the woman. When her body was found by police, it was naked; there was a deep laceration to her throat, and bruising and abrasions around her genital area. Although the appellant was suspected of the murder, there was not enough evidence at that stage to charge him.

6.  In the early hours of the morning of 22 April 1983, the appellant murdered a man with whom he had been drinking. He beat the man to death with a hammer.

7.  A short time afterwards, the appellant went to a school for handicapped children. Present there were three women employed as supervisors. In circumstances of extreme terror, he forced the women to undress, bound them, and made them lie on a bed. Following threats, and sexual abuse, he went from one woman to the other, repeatedly stabbing each with a knife. One woman had twenty seven incisions in the throat area. Two of the women died and, remarkably, one of them survived. She was the subject of the charge of wounding with intent to murder.

8.  At the time of the appellant's sentencing, the trial judge had the power, in the exercise of his discretion, to impose a lesser sentence than penal servitude for life. Not surprisingly, no application was made for the exercise of that power.

Sentencing Act 1989, s13A

9.  The Sentencing Act 1989 was enacted to give legislative expression to a policy described as truth in sentencing. One aspect of that policy was the abolition of the previous system of release on licence, at the discretion of the executive government, of prisoners serving life sentences. Section 13A was enacted for the purpose of dealing with the position, under the truth in sentencing legislation, of persons serving life sentences.


10.  Under s13A a person in the position of the appellant may apply to the Supreme Court for the determination of a minimum term and an additional term. If such an application is successful then, at the expiration of the minimum term, the prisoner becomes eligible for release on parole. That, of course, does not necessarily mean that the prisoner will be released at the expiration of the minimum term. That is a decision to be made by the Offenders Review Board, which takes into account the prisoner's suitability for release, and matters such as any possible danger to the public.

11.  The court has dealt with many applications under s13A. Most have resulted in the determination of minimum and additional terms, but some have not. The case of R v Crump (CCA, unreported, 30 May 1994) (in which the High Court refused special leave to appeal) is an example of an unsuccessful application, as is the related case of R v Baker (CCA, unreported, 23 May 1994).

12.  The legal consequence of the decision of Carruthers J, to decline to determine minimum and additional terms, is that the appellant continues to serve an indeterminate sentence. It is open to him to make another application, at a future time not less than two years from the date of the decision of Carruthers J. Under the present provisions of s13A, if a judge to whom an application is made is of the view that what is involved is a most serious case of murder, and it is in the public interest so to do, the judge may direct that the applicant never re-apply. However, the amendments conferring that power on a judge came into force after the appellant's application was filed, and did not apply to it.

13.  Section 13A(9) sets out certain matters to which a judge is obliged to have regard. They include the release on licence system operating at the time of the original sentencing, and any report on the applicant made by the Serious Offenders Review Board.

14.  In past cases, the meaning of the requirement to have regard to the release on licence system has been considered to be rather obscure, but it gives rise to no difficulty in the present case. As Carruthers J observed, O'Brien CJ CrD understood the system perfectly well,
and there has been no argument in this appeal about the meaning of s13A(9).

15.  Carruthers J had before him a detailed report by the Serious Offenders Review Board. It covered the applicant's custodial history. It expressed the following conclusion:

"There can be little doubt that Boyd's terrible crimes demand that he spend a very long time in gaol. His continued movement through the system will depend on any minimum and additional term set. Boyd's next move will most likely be to a medium security gaol at a B classification. If he is to be released then the Board will eventually begin to prepare him for that possibility by reducing him to minimum security in a C classification at the appropriate time. In such conditions he would be increasingly exposed to fewer restrictions on his freedom. At the lowest level of minimum security, he would be able to leave gaol unescorted to attend education courses or have day leave with approved sponsors to go out each day on work release.

In the meantime, the nature and number of Boyd's crimes, following as they did many earlier breaches of the law, and his persistence in an explanation for them which is in Dr Milton's view 'unconvincing', make him unsuitable, in the Board's view, for release at any time within the foreseeable future".

16.  Senior counsel for the appellant does not suggest that there is any serious question of his client's possible release in the near future. However, he observes that it would have been open to Carruthers J to set a lengthy minimum term, and an additional term of life.

The psychiatric evidence

17.  In addition to the report of the Serious Offenders Review Board, Carruthers J had before him the evidence of psychiatrists. They found no recognisable psychiatric condition. They were unable to explain the appellant's crimes, and could not offer any confident prediction of the likelihood of his reoffending following release. Dr Barclay said:

"The only indication of dangerousness of this man is the offences he committed".

18.  Having regard to the nature of the offences the appellant committed, the use of the word "only" seems somewhat guarded. His past history is that of an extremely dangerous person, and there appears to be nothing in the psychiatric reports to warrant a conclusion that his eleven years in prison to date have made him significantly less dangerous. Dr Milton said:

"... a repetition of disastrous behaviour following another disappointment would not be surprising".

19.  One can only speculate about what kind of event or circumstance the appellant would regard as a disappointment.

The reasons of Carruthers J

20.  Having reviewed in detail the psychiatric evidence, and the report of the Serious Offenders' Review Board, Carruthers J considered the matters which s13A(9) required him to take into account.

21.  He observed that, by reason of s13A(5), if he were to fix minimum terms, each would have to commence on 22 April 1983. It is in that respect not possible to impose cumulative sentences under s13A(5). However, the circumstance that a person is a multiple offender is a material consideration in any sentencing exercise. It has a potential bearing upon all of the matters usually identified as the purposes of criminal punishment: "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform". (Veen v The Queen (No 2) [1988] HCA 14;  (1988) 164 CLR 465 at 476.)

22.  Carruthers J considered the objective features of the appellant's crimes, and his personal history. He said:

"The fact that the applicant committed these crimes free from any serious mental or emotional disorder is a very chilling thought. His conduct speaks, therefore, predominantly of straightforward wickedness".

23.  He expressed concern at Dr Milton's fear of a repetition of disastrous behaviour. With some hesitation, he accepted that there was a degree of contrition.


24.  In one aspect of his reasoning, Carruthers J made what is conceded by the Crown to be an error of law. In the course of expressing concern about the age of the appellant he said:

"It is an awesome step for a judge to hold that an offender should be incarcerated for the term of his or her natural life subject only to the exercise of the royal prerogative of mercy or the provisions of s25A(1) of the Act under which the Offenders Review Board May Make a parole order directing the release on parole of any prisoner, notwithstanding that the prisoner is not otherwise eligible for release on parole, where the prisoner is dying, or the Board is satisfied that it is necessary to release him or her on parole because of     exceptional extenuating Circumstances".

25.  His Honour's reference to the royal prerogative was correct and relevant. However, the reference to s25A of the Sentencing Act was erroneous. That section does not apply in respect of a person serving a sentence of imprisonment for life (s25A(6)).

26. Taking into account the matters to be weighed, including those referred to in s13A(9), Carruthers J refused the application. His primary reason was that "the subject offences fall within the worst category of cases for which the penalty of penal servitude for the term of one's natural life is prescribed". I take his Honour to mean that he was confronted with a combination of objective and subjective circumstances, and multiplicity of offences, which meant that he was dealing with the worst type of offence, committed by the worst type of offender, albeit one who was relatively young, and he considered that penal servitude for life, without the prospect of parole, was appropriate.

27.  In effect, his Honour was treating the case as similar to Crump and Baker, to which he made reference. He also referred to R v Garforth (CCA unreported, 23 May 1994), an unsuccessful appeal from a life sentence imposed on a young man under s19A of the Crimes Act 1900. A person sentenced under s19A remains in prison for the term of his natural life (s19A(2)).

The exercise of discretion

28.  The Crown submitted before Carruthers J, and submits in this court, that what was said by Hunt CJ at CL in the case of Crump applies also to the present case:

"The element of retribution in this case requires it demands that he will be given a life sentence, and one which means what it says".

29.  This approach may be contrasted with that taken, in a different context, by the majority of the Court of Criminal Appeal in Victoria in R v Denyer  (1995) 1 VR 186. That was an appeal against sentence, but the Court of Criminal Appeal was strongly influenced by what had been said by the High Court in Bugmy v The Queen [1990] HCA 18;  (1990) 169 CLR 525, in the context of an application for a redetermination of a life sentence.

30.  In Bugmy an offender convicted of murder and armed robbery had been given an indeterminate life sentence in respect of the murder, and a concurrent sentence of 9 years in respect of the armed robbery. When legislation was enacted enabling him to apply for an order fixing a minimum term of imprisonment he made an application, and the primary judge fixed a minimum term of 18 years and 6 months. His appeal was dismissed by the Court of Criminal
Appeal of Victoria, but the High Court allowed a further appeal, the majority holding that the minimum term fixed was too long, and that the primary judge had made an error of principle. The error was that, in fixing the minimum term, he paid too much regard to matters which were of primary significance in relation to a head sentence. What is important for present purposes is the emphasis which the High Court placed upon the scope which a lengthy minimum term gives for reappraisal, at a future time, of matters such as an offender's danger to the community. The majority said (169 CLR at 537):

"The risk that the applicant might re-offend was of course a relevant factor in fixing a minimum term. But a Minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation. The applicant was twenty-seven years of age when the minimum term was fixed. He will be over forty-five before the likelihood that he will re-offend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally, the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead. Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance".

31.  On the other hand the minority, Mason CJ and McHugh J, said, at 533:

"It is simply wrong to suggest that the propensity of the offender to commit violent crimes, the likelihood of his re-offending and the need to protect the community are of marginal relevance in the fixing of the minimum term; in truth they are factors which are necessarily central to a proper discharge of the judicial task. Equally, it is wrong to suggest that these factors are of distinctly less significance in the case of a long minimum term by reason of difficulty of making a forecast of future behaviour so long ahead. Their relevance and significance remain the same; the weight that they have depends upon the judge's assessment of the prisoner's prospects of rehabilitation".

32.  In the case of Denyer, which was an appeal against sentence, the appellant had pleaded guilty to three counts of murder and one of kidnapping. He was sentenced to life imprisonment on each of the counts of murder, and the sentencing judge declined to fix a non-parole period. The Court of Criminal Appeal (Crockett and Southwell JJ, Phillips CJ dissenting) allowed an appeal, and fixed a non-parole period of thirty years.

33.  Crockett J said (at 194) that neither the nature of the offences, nor the past history of the offender, entitled the court to conclude that there would never be a prospect of rehabilitation. He referred to the passage of the majority judgment in Bugmy set out above, and said that it was the duty of the judge to have fixed a non-parole period.

34.  However, Southwell J said (at 196):

"There may well be cases where, having regard, inter alia, to the nature of the offence, the antecedents of the offender, and his age at the time of sentence, (quite apart from seemingly imponderable considerations concerning the future Protection of the community), the justice of the case, in the opinion of the sentencing judge, requires him to find affirmatively that the prisoner should remain incarcerated for the term of his natural life".

He gave an example of such a case. However, he did not think that the case before him fell into that category.

35.  Phillips CJ, dissenting, regarded the case as falling into the last mentioned category.


36.  Even in the days when New South Wales had a system of release on licence of persons serving life sentences, there were some offenders (such as Baker and Crump) of whom the sentencing judge expressed the view that they should never be released. As was noted above, s19A of the Crimes Act now permits sentencing judges to give effect to such a view by imposing a life sentence which means what it says.

37.  The age of the appellant is undoubtedly an important consideration in favour of fixing a minimum term, as are the matters referred to by the majorities in Bugmy and Denyer. It has been argued that, even if we were to fix a minimum term of say, thirty years, we would at least be providing some goal towards which the appellant could work, and allowing some prospect for a future decision that his continued incarceration is no longer necessary in the public interest. These are weighty submissions. However, the crimes of the appellant are so serious and so numerous that, when all the purposes of punishment are taken into account, including retribution and the protection of society, justice requires that his application for the fixing of a minimum term should be refused.

Cruel and unusual punishment?

38.  The Act of the United Kingdom Parliament of 1688, enacted for the purpose of "declaring the rights and liberties of the subject", which is commonly called the Bill of Rights, (1 William and Mary sess. 2 c. 2), applies in New South Wales by virtue of the Imperial Acts Application Act 1969 (A Second Schedule, Pt 1). (cf R v Jackson  (1987) 8 NSWLR 116; Smith v The Queen  (1991) 25 NSWLR 1.)

39.  The preamble to the Act recited that King James II had engaged in various iniquities which included requiring excessive bail of persons committed in criminal cases in order to elude the benefit of the laws made for the liberty of the subjects, the imposition of excessive fines, and the inflicting of illegal and cruel punishments. The legislation provided, amongst other things "that excessive baile ought not to be required nor excessive Fines imposed nor cruel and unusuall Punishments inflicted".

40.  That legislation has been called in aid by the appellant in this appeal.

41.  It is necessary to identify the significance sought to be attached to the legislation. It is not suggested that it is beyond the law-making power of the New South Wales Parliament to enact legislation inconsistent with this imperial statute. It does not have the force of a constitution controlling or modifying the legislative power of the local parliament. Nor is it suggested that we are confronted by some difficulty of statutory construction, the resolution of which might be assisted by having regard to the Bill of Rights.

42.  Senior counsel for the appellant, when invited to indicate the legal relevance of his reference to the Bill of Rights, submitted that the primary judge was, by virtue of the Bill of Rights, obliged, in the exercise of his discretion, to take into account the consideration that failure to determine a minimum term would involve inflicting cruel and unusual punishment or, alternatively, turning existing punishment into cruel and unusual punishment.

43.  The meaning of this submission is not entirely clear. Nor is its forensic purpose. It might well be thought that, if the appellant were entitled to succeed in this appeal, it would be by virtue of an argument a good deal more modest, and easier to sustain, than this one. The argument seems to go much further than an argument that what was involved at first instance was an unreasonable and unduly harsh exercise of discretion. If the appellant is unable to persuade this court that the primary judge's exercise of discretion was unreasonably harsh, he will find it even more difficult to persuade the court that what is involved is a cruel and unusual punishment offensive to the Bill of Rights. Conversely, if the appellant can persuade this court that the primary judge erred in the exercise of his discretion, and dealt with the appellant's application in a manner that was unreasonably harsh, he does not need to go on to persuade us that what was done was cruel and unusual. It may be that the primary purpose of the argument is rhetorical. However, it has been put, and requires consideration.

44.  In Harmelin v Michigan [1991] USSC 120;  (1991) 501 US 957, the Supreme Court of the United States considered the Eighth Amendment, which is in substantially the same terms as the relevant provisions of the English Bill of Rights. It was adopted directly from those provisions. The question which arose for determination in Harmelin was whether a mandatory term of life imprisonment, without the possibility of parole, imposed for possession of 650 gms or more of cocaine, constituted cruel and unusual punishment under the Eighth Amendment. A majority of the Supreme Court answered that question in the negative.

45.  Scalia J, speaking for the majority, made some observations on the history of the United Kingdom Bill of Rights. Most historians agree that the prohibition of cruel and unusual punishments was prompted by the abuses attributed to Lord Chief Justice Jeffreys. The law provided for various penalties which we would now regard as excessively cruel. The penalties for treason are examples. What was objected to about the conduct of Lord Chief Justice Jeffreys, however, was that he was said to have invented special penalties, not authorised by statute or by common law, for dealing with the King's enemies. In the case of Titus Oates, for example, the judges assumed a discretionary power to impose punishments not available under statute. Amongst other things, they sentenced Oates to be scourged to death.

46. Scalia J pointed out that the primary objection to these punishments was, not that they were disproportionate to the offences, but that they were contrary to law and precedent. The expression "cruel and unusual" meant the same as "cruel and illegal". It was the departure of the punishments from the laws and usages of the kingdom that attracted complaint. These were times when extremely severe punishments were inflicted for a wide variety of offences.

47. There has been much debate in the United States as to the extent to which the Eighth Amendment strikes down penalties on the ground that they are disproportionate to the offences for which they may be imposed. The decision in Harmelin illustrates the relatively modest scope currently allowed there for arguments based upon lack of proportionality. In that respect it is also instructive to consider some of the punishments that have been held not to constitute cruel and unusual punishment. These include, for example, sentences of 199 years for murder (United States ex Rel. Bongiorno, v Ragn  (1945, C A 7 Ill)  146 F 2d 349, cert den  325 US 865; People v Grant  (1943) 385 Ill 61, cert den  323 US 743; People v Woods  (1946) 393 Ill 586, cert den  332 US 854); 199 years for bank robbery involving two murders (United States v Jjakalski  (1959, C A 7 Ill) [1959] USCA7 168;  267 F 2d 609, cert den  362 US 936); and 99 years for rape (People v Fog  (1944) 385 Ill 389, cert den  327 US 811). In Rogers v State (Ark)  515 S W 2d 79, cert den  421 US 930, it was held that a sentence of life imprisonment without the possibility of parole for a rape committed by a seventeen year old first offender did not amount to cruel and unusual punishment.

48.  In Canada, on the other hand, the Supreme Court, in a case similar to Harmelin, reached the opposite conclusion. In Smith v The Queen  (1987) 34 CCC (3d) 97, a statute which required a minimum term of imprisonment for seven years for anyone guilty of a certain type of drug offence was held unconstitutional because it infringed the prohibition in the Canadian Charter of Rights and Freedoms of "cruel and unusual treatment or punishment". (The addition of the word "treatment" to the original English formula has been said to be significant - see McIntyre J at 106).

49.  The effect of previous Canadian decisions on the meaning of the prohibition was summarised (by McIntyre J at 115) as follows:

"A punishment will be cruel and unusual and violate s12 of the Charter if it has any one or more of the following characteristics:

(1) The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity;

(2) The punishment goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives; or

(3) The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards".

(To revert to a point made above, if any one of those characteristics could be shown to exist in the present case, the appellant would be entitled to succeed  on ordinary principles, without resort to the Bill of Rights.)

50.  In Canada, punishment must be grossly disproportionate, (not merely excessive), or arbitrary and insensitive to the circumstances of individual cases, to contravene s12 of the Charter. A statute which specified, in the case of first degree murder, imprisonment for life without eligibility for parole for twenty-five years, was held valid. (R v Luxton  (1990) 2 SCR 711. See also R v Goltz  (1992) 67 CCC (3d) 481.)

51.  In South Africa, the newly formed Constitutional Court has recently held that a constitutional prohibition of "cruel inhuman or degrading treatment or punishment" struck down the death penalty (The State of Markwanyane, 6 June 1995). The judgment of Chaskalson P in that case contains a comprehensive review of the international jurisprudence on this topic.

52.  The Eighth Amendment in the United States, and s12 of the Canadian Charter, and s11(2) of the 1993 Constitution of South Africa, operate to fetter the law-making power of legislatures. We are not here concerned with such an issue. In New South Wales the Parliament itself reflects community standards, and declares public policy, in its sentencing legislation.

53.  In neither the United States nor Canada does the learning on the relevant constitutional provisions give any support for a conclusion that sentencing an offender, of the present appellant's age and background, to a lifetime of incarceration for committing four murders and one attempted murder, after a discretionary examination of the circumstances of the individual case, could be described as a cruel and unusual punishment.

54.  It is to be borne in mind that the Parliament of New South Wales, in enacting s19A of the Crimes Act, has recently declared that it is consistent with current community standards in this State for a person convicted of murder to be sentenced to serve the remainder of his life is prison.

55.  The discretionary decision of Carruthers J did not involve inflicting a cruel and unusual punishment.

Conclusion

56.  The appeal should be dismissed.

JUDGE2
JAMES J  I agree with the judgment of the Chief Justice and with the orders proposed by him.

JUDGE3
IRELAND J  I agree with the Chief Justice.

Samuel Leonard Boyd

Samuel Leonard Boyd

Samuel Leonard Boyd