CCPR/C/112/D/1968/2010 authors’ sentences were litigated extensively and upheld in successive cases before Australian courts. 4.5 Legislative amendments in 1997, 2001 and 2005 created the sentencing regime currently applicable to the authors, as outlined in their submission. Those amendments altered the conditions pursuant to which persons who have been the subject of non-release recommendations by their trial judges are eligible for parole. The regime in effect applies to nine offenders in total, including the authors. In 2006, the authors applied to the Court of Criminal Appeal for leave to further appeal their sentences on the basis of those legislative amendments. They put forward wide-ranging arguments, including that the non-release recommendation by Judge Newman had effectively become a new sentence, that they had been denied procedural fairness as a result of the legislative changes and that the legislation was constitutionally invalid. The Court refused leave to appeal. It acknowledged that the new sentencing regime meant that “it is much less likely that [the authors] will ever be released from prison than would have been the case” otherwise. However, it determined that the legislative changes were valid, as the Parliament of New South Wales had deliberately decided to create a stricter regime for offenders subject to non-release recommendations, in the knowledge that they comprised a small group of persons who had committed the most heinous crimes. As such, the Court considered that the creation of special parole conditions for those persons was not arbitrary or inherently unfair and that it was directly related to the gravity of their conduct. 4.6 The authors appealed this decision to the High Court of Australia, which dismissed their arguments. While noting that the legislative changes affecting the authors’ sentences were several and unusual, the Court remarked that: “What must always be unknown to a sentencing judge … are the paths that may be taken with respect to the status quo by future legislation. The subsequent legislation affecting the position of the appellants did not create any miscarriage of justice.” Claims under article 7 4.7 A sentence of life imprisonment only gives rise to a violation of article 7 if it is grossly disproportionate. The sentences imposed on the authors do not meet this threshold, even taking into account their status as juveniles and the principles enshrined in articles 37 (a) and (b), and 40 (1) of the Convention on the Rights of the Child. Furthermore, the authors have not been sentenced to life imprisonment without possibility of release. 4.8 Pursuant to sections 2 and 4 of Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the authors may apply to the Supreme Court of New South Wales for the determination of a non-parole period for their sentence after they have served 30 years in prison, a period which will expire on 9 March 2020 for Mr. Blessington and on 9 September 2020 for Mr. Elliott. The Court may grant the application if it is satisfied that “special reasons” exist. In considering whether to grant an application, the Court must have regard to certain factors, as specified in section 7 of Schedule 1.7 Under Section 7 (3) of Schedule 1, the Court must also give substantial weight to, and consider adopting, any recommendations made by the sentencing judge. That would include the non-release recommendation made in respect of the authors. However, the Supreme Court remains at liberty to decline to adopt that recommendation. If the Court does not adopt a sentencing 7 8 According to Section 7, those factors include all of the circumstances surrounding the offence for which the sentence was imposed; any other offences of which the person has been convicted; any reports on the person made by the Serious Offenders Review Council and any other available and relevant reports prepared since their sentencing; the need to preserve the safety of the community; the age of the person; the level of culpability of the person and the heinousness of the offences.