CCPR/C/112/D/1968/2010 recommendation, it must record its reasons for doing so. If the authors make an application for the determination of a non-parole period and it is unsuccessful, they may appeal the decision of the Supreme Court to the Court of Criminal Appeal of New South Wales. 4.9 The authors retain a real possibility of having a non-parole period set pursuant to that regime. The Court can take into account a range of mitigating factors, including the age of the authors and any rehabilitative progress made in prison. In particular, reports from the Serious Offenders Review Council take into account, inter alia, the classification and placement history of the offenders in prison; any compliance issues with their day-to-day management in prison; offences in custody; participation in prison programmes; and psychological and psychiatric assessments. 4.10 The question of whether the requirement for “special reasons” in Schedule 1 can be met was considered by the High Court of Australia in Baker v. R. The appellant Baker contended that the “special reasons” test was constitutionally invalid since no applicant could realistically succeed in meeting it. The Court dismissed that argument. Judge Gleeson held that “there is nothing unusual about legislation that requires courts to find ‘special reasons’ or ‘special circumstances’ as a condition of the exercise of a power. That is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition”. The High Court in Baker v. R confirmed that each of the factors in section 7 may constitute special reasons for the granting of an application for a non-parole period, including the age of the offender at the time of the commission of the offence, as indicated by Judge Gleeson. 4.11 If the Supreme Court grants an application and a non-parole period is set, the authors may apply for release on parole at the expiry of that period to the New South Wales State Parole Authority, pursuant to section 154 A (3) of the Crimes (Administration of Sentences) Act 1999 (NSW). Under this provision, the Parole Authority must be satisfied that this is justified on the grounds that the offender is in imminent danger of dying, or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person and has demonstrated that he or she does not pose a risk to the community. The State party accepts that the legislative amendments that created this test have diminished the authors’ prospects of release on parole, but it remains nevertheless a realistic possibility. 4.12 The State party further submits that the authors enjoy the possibility of release pursuant to the royal prerogative of mercy or, alternatively, under section 76 of the Crimes (Appeal and Review) Act 2001 (NSW). The royal prerogative of mercy is an unfettered discretionary power that the Governor of New South Wales may exercise. While the prerogative is usually exercised in cases involving non-violent offences, there is one example in which the Governor granted release on parole to a person convicted of murder, having regard to the exceptional compassionate circumstances of the case. The availability of the royal prerogative of mercy renders the authors’ claim in relation to article 7 unmeritorious. 4.13 If the Committee decides to characterize the sentencing regime applicable to the authors as being without possibility of parole, the State party submits that although the conditions of parole applicable to the authors were altered, their sentence of life imprisonment was imposed on them at the outset. Judge Newman was not required to impose a life sentence, but he did so after careful consideration of mitigating factors, including the age and troubled backgrounds of the authors. Furthermore, his non-release recommendation indicated his measured view that the continued incarceration of the authors well into the future (and possibly for most of their natural lives) might serve legitimate penological purposes. Their imprisonment cannot be characterized as grossly disproportionate while the 30-year minimum term is yet to be served in full. 9