Ludawane v Regina [2017] SBCA 23; SICOA-CRAC 37 of 2016 (13 October 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Palmer CJ )
COURT FILE NUMBER:	Criminal Appeal Case No. 37 of 2016 (On Appeal from High Court Criminal Case No. 233 of 2008)
DATE OF HEARING:	3 October 2017
DATE OF JUDGMENT:	13 October 2017
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	MOSTYN LUDAWANE - V - REGINA
ADVOCATES: APPELLANT: RESPONDENT:	Mr. D. Hou Mrs R. Olutimayin
KEY WORDS:	MURDER. LIFE SENTENCE. PAROLE: MINIMUM TERM TO BE SERVED
EXTEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	ALLOWED
PAGES	1- 14

JUDGMENT OF THE COURT

1. This appeal against sentence is brought with leave. Leave was required given the delay between sentence and filing of the appeal. The sentence imposed in this matter was imposed on 5 October 2010 and the appeal commenced 28 April 2017. It may become apparent to the reader from this judgment as to why the matter was not brought before this Court at an earlier time.
2. Mostyn Ludawane, the Appellant, was convicted on his own plea before the High Court on 15 July 2010 and on 5 October 2010 sentenced to a period of life imprisonment for the offence of murder. There is no penalty other than a life sentence of imprisonment available in the case of an adult convicted of that offence in this jurisdiction. The appeal against sentence concerns the recommendation contained in the reasons for judgment that the Appellant serve at least eight years’ imprisonment prior to being considered for release on licence by the Parole Board.
3. Prior to the Correctional Services Act 2007 (No 8 of 2007), the Correctional Services (Amendment) Act 2008 (No 6 of 2008) and the Correctional Services Regulations 2008 a life sentence of imprisonment imposed on an offender meant serving the remainder of his or her life in prison subject to release by the relevant authority on, for example, compassionate grounds. With the introduction of the Correctional Services legislation release on licence was extended to include those serving sentences of imprisonment for life. Under the most recent Regulations, which came into force 30 May 2014 the class of persons entitled to apply for release on licence to the Parole Board (referred to as ‘parole’) is limited to those who have served eight years in prison of a non-life sentence or ten years in prison in the case of a life sentence.
4. Prior to those 2014 Regulations, the Minister could order the release on licence, conditional or otherwise, of any prisoner at any time. That power was limited in the case of a life sentence. The limit imposed in that instance was consultation with the Chief Justice and trial judge if available. These provisions were removed by the 2014 Regulations.
5. The category of persons, then, now eligible for Parole is very limited. Given the normal remission for good behaviour, a prisoner must be subject to a minimum term of imprisonment of more than twelve years. It is important to recall the earlier provisions as in force at the time of delivery of the original judgment to appreciate some of the sentencing remarks.
6. Other than the legislation referred to above there is no other legislation indicating that when sentencing a court is required to impose or recommend a minimum term of imprisonment to be served prior to being eligible to apply for parole. Given the pre-2008 position such a recommendation or imposition was irrelevant. Following the coming into force of these parole provisions the issue of whether a sentencing could should or must consider the imposition of a minimum term or make a recommendation to the same effect became an issue, recognized by the trial judge in sentencing this Appellant.
7. Before turning to the relevant law and regulations required to be considered on this appeal it is necessary, in our view, to set out the facts of the offending. These facts, after all, form the basis of any sentence and, if required, any recommendation or direction, as to a minimum term. The facts are as set out in the opening address of the prosecution as agreed by counsel for the Appellant on this appeal.

On 12 November 2007, in the village of Fouia in north east Malaita, the deceased James Ludawane went to a nearby house and told a friend that his father had beaten him and that he wanted to beat him again with a knife.

James stayed with a friend of a few days before returning to his father who had been looking for him.

On Friday 16 November 2007 James returned home at about 6 pm. By 8 pm James had returned to his friends saying that his father had said that he wanted to cut his mouth with a knife.

On Sunday 18 November James was taken back to his house. When James saw his father, the accused, James ran away. His father threw stones at him. His friend went and found him and brought him back to the house.

At about 8 pm on the 18 November the accused went to where James was staying and grabbed James and took him back home. James called out to his friend to follow as his father had said that “he will beat him to death”.

His friend followed and found that the accused had locked the main door to the house. The friend could see the accused beating James. The accused had tied James to the veranda and was seen to beat James about 8 times with a belt. The accused then threatened James with a mangrove stick saying he would beat him when he returned. The accused then slapped James with his right hand to the left side of James’ neck. The accused left James tied up and went and chewed betel nut.

The punishment was for taking a melon from a garden.

James managed to escape and return to his friend’s house.

James stayed there until Wednesday 21 November.

On this day about 1500 hours James went and played with other kids who were skiing down some mud.

At some stage James was seen near a river sitting alone.

At this time his father was seen approaching him and trying to catch him.

James was warned of this by another and he then fled in the direction of the Fouia Primary School away from the river.

Soon after James was seen running back down the road towards the river, He went to the river.

Soon after the accused was seen running after James.

The accused then struck James on the backside with a large sago palm branch. This caused James to fall down landing on his face.

The accused then held James up by his ankles and hit his head into the base of a tree and a stone in the river. The accused then told James to stand up whereupon, whilst holding his neck, he hit him to the mouth with a right closed fist causing him to bleed.

The accused then grabbed James shirt by the neck and dragged him back to the village.

The accused was heard to say, “today I will beat you to death”.

He was also heard to say, “I have been looking for you everywhere throughout the day”.

A man who saw this asked the accused “hey you kilim nogud pikini ya now ya.” The accused replied aggressively saying “ya me teachim hem by kasim house by me kilim gud long hem ya”.

The accused pushed James into the house.

Loud noises were heard coming from the house.

Inside the house the accused tied James hands and told him to sit on a chair. The accused beat him about five times with a stick whilst asking him why he wanted to escape.

James was heard to cry for his mother.

The accused told James to be quiet or he would push the stick into his mouth.

The accused then untied James.

The accused then opened the door and pushed James down the ladder causing him to fall and to hit his head on the cement at the bottom of the ladder.

The accused then grabbed James and led him inside the kitchen. James had difficulty walking.

The accused then tied James’ hands in front of him and threw the rope over a wooden beam. The accused then pulled James off the ground leaving him suspended by the wrists.

The accused then asked James why he had run away. James did not answer.

The accused then cut James’ shirt with a bush knife.

James was seen to have thick saliva coming out of his mouth. The accused ordered him to spit at him but James did not.

The accused then cut a mangrove stick and beat James twice with it. The first blow landed at the bottom of his back bone and the second near the right shoulder landing on the neck below the right ear and mouth.

After the accused beat him the second time he asked James “you feelim?” James made no reply.

James was seen with blood and saliva coming from his mouth.

Someone told the accused to stop but he said, “this is my son not yours”.

James did not cry and the accused then untied the rope from the beam.

James could not stand so the accused carried him to the kitchen.

James was seen soon after this. His breathing was heavy, blood and saliva were coming from his mouth and his head was moving up and down. His hand and fingers were also observed not to be normal and twisted.

The accused was asked why he beat the child. He replied that James had stolen melon and money.

The accused chased people away from his dying son but they insisted on trying to help.

A nurse attended and looked at James. He noticed a cut above the left side of the head, a swollen neck, a swollen face, whip marks on the cheeks and his extremities were jerking abnormally.

Efforts to revive James proved unsuccessful and he died at about 8.45 p.m.

8. Given that this appeal is against sentence it is important to bear in mind that which the Appellant did by way of his offending hence the need to set out the facts of the offence. It becomes even more important when, somewhat unfortunately in our view, counsel for the Appellant submits that the offence was committed on the spur of the moment. On any reading of the facts this course of conduct over a five-day period was anything but a spur of the moment incident.
9. Lifetime imprisonment has changed over time in various jurisdictions from the balance of the offenders’ life being spent in an institution following imposition of sentence to various lesser periods of incarceration. Regimes differ in their approach. In some jurisdictions there are comprehensive legislative provisions regarding sentencing. In others the common law has been used to develop appropriate responses to changing needs. Thus, in England and Wales, it can be observed that, with guidance from the European Court of Justice on the European Convention on Human Rights, to which the United Kingdom still presently remains a signatory, there was a non-statutory move towards the imposition of a minimum recommended term of imprisonment which was eventually adopted in statutory form (in relation to mandatory life sentences) in 2003. Those developments began in 1983 and eventually, by 2002 were described by the European Court in Stafford v United Kingdom (Application No 46295/99, 28 May 2002), expressing its conclusions in paragraphs 78-80 of the judgment:

"78 The above developments demonstrate an evolving analysis, in terms of the right to liberty and its underlying values, of the role of the Secretary of State concerning life sentences. The abolition of the death penalty in 1965 and the conferring on the Secretary of State of the power to release convicted murderers represented, at that time, a major and progressive reform. However, with the wider recognition of the need to develop and apply, in relation to mandatory life prisoners, judicial procedures reflecting standards of independence, fairness and openness, the continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner's release following its expiry, has become increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary, a notion which has assumed growing importance in the case-law of the Court (mutatis mutandis, the Incal v Turkey judgment of 9 June 1998, Reports 1998-IV).

79 The Court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The Court concludes that the finding in Wynne^[1] that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner. This conclusion is reinforced by the fact that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence. It is correct that the Court in its more recent judgments in T^[2] and V^[3], citing the Wynne judgment as authority, reiterated that an adult mandatory life sentence constituted punishment for life (T v the United Kingdom, cited above, and V v the United Kingdom, cited above. In doing so it had, however, merely sought to draw attention to the difference between such a life sentence and a sentence to detention during Her Majesty's pleasure, which was the category of sentence under review in the cases concerned. The purpose of the statement had therefore been to distinguish previous case-law rather than to confirm an analysis deriving from that case-law.

80 The Government maintained that the mandatory life sentence was nonetheless an indeterminate sentence which was not based on any individual characteristic of the offender, such as youth and dangerousness and therefore there was no question of any change in the relevant circumstances of the offender that might raise lawfulness issues concerning the basis for his continued detention. However, the Court is not convinced by this argument. Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness. Reference has been made by Secretaries of State to a third element - public acceptability of release - yet this has never in fact been relied upon. As Lord Justice Simon Brown forcefully commented in the case of Anderson and Taylor [2001] EWCA 698, it is not apparent how public confidence in the system of criminal justice could legitimately require the continued incarceration of a prisoner who had served the term required for punishment for the offence and was no longer a risk to the public. It may also be noted that recent reforms in Scotland and Northern Ireland equate the position of mandatory life prisoners in those jurisdictions to that of discretionary life prisoners in England and Wales in respect of whom continued detention after expiry of tariff is solely based on assessment of risk of harm to the public from future violent or sexual offending."

10. The relevant provisions being considered in Stafford reflect in almost identical terms the Constitutional provisions in this jurisdiction. Those provisions are to be found in Chapter II of the Constitution and are principally within section 10 thereof. The protection of the law provisions provide for a fair hearing within a reasonable time by an independent and impartial court established by law.
11. In R v Secretary of State for the Home Department Ex Parte Anderson [2002] UKHL 46 the position being considered was described through a staged process. It began with: -

“Under article 6(1) of the convention a criminal defendant has a right to a fair trial by an independent and impartial tribunal.”

This provision corresponds with Solomon Islands Constitution Chapter II Article 10

It continued: -

“(2) The imposition of sentence is part of the trial.

(3) Therefore sentence should be imposed by an independent and impartial tribunal.

(4) The fixing of the tariff of a convicted murderer is legally indistinguishable from the imposition of sentence.

(5) Therefore the tariff should be fixed by an independent and impartial tribunal.

(6) The Home Secretary is not an independent and impartial tribunal.

(7) Therefore the Home Secretary should not fix the tariff of a convicted murderer.”

12. It is, of course, necessary to consider the above in context, replacing Home Secretary with Minister responsible for Correctional Services.
13. In the context of this appeal, counsel representing the Respondent conceded that the answer to each of the above steps should be in the positive, that is to say that it is conceded that the imposition of sentence is part of the trial, that the sentence should be imposed by an independent and impartial tribunal, that the fixing of the tariff of a convicted murderer is legally indistinguishable from the imposition of a sentence, the Minister responsible is not an impartial and independent tribunal and therefore should not be responsible for fixing the tariff of a convicted murderer.
14. It is necessary to indicate at this stage that, regardless of the concession, this Court regards the answers provided within Anderson as correct. We further consider that the same principle must apply in this jurisdiction given the identical terms of the relevant Constitutional provision regarding a fair trial. The concession made simply shortened the route by which this Court could confirm the applicability of the principle.
15. We adopt without reservation the approach set out in Anderson and confirm that when sentencing an offender to a mandatory sentence of life imprisonment it is incumbent on the sentencing judge to fix a minimum term of imprisonment which the offender must serve prior to his or her release on licence (termed in the legislation ‘parole’).
16. That principle, on this appeal, is said to conflict with the present regulations made under the Correctional Services Act 2007 wherein it is provided that an application to the Parole Board can only be made after an offender the subject of a life sentence has served at least ten years of that sentence. This, it is submitted, offends the principle that the minimum term must be set by the judicial officer as part of the sentencing process and should not be set by the Executive. We do not dissent from that argument, but for reasons set out later in this judgment make no order about the present Regulations.
17. As earlier said, it was not necessary under the former sentencing regime to specify a minimum term as a life sentence was not affected by parole provisions. With the advent of this legislative change the requirement to set a minimum term becomes apparent and with that the need for guidelines as to what minimum terms should be set.
18. Murder is one of the most serious offences in the criminal calendar. That is clear from its effect and is reflected in the mandatory penalty provided by the Legislature. This fundamental point should not be overlooked when determining a minimum term of imprisonment to be served. In common with other offences, whilst inevitably serious, murders themselves fall into the most, very and less serious categories. It may be that there should be more categories than the three set out here, but a useful starting point is that division from the worst category of offence to a category which may attract a shorter, although still substantial, minimum terms of imprisonment.
19. This categorisation has been expounded, in England and Wales, through a Practice Direction issued by the Chief Justice. That Practice Direction, to be found at [2015] EWCA Crim 1567 and, amongst many other issues, turns to mandatory life sentences and minimum terms of imprisonment at Chapter VII Part M.
20. Part M is primarily concerned with the statutory regime now in place within England and Wales, which scheme is, of course, not the law of this jurisdiction. Part N, however, explains the scheme which existed prior to the present legislation, and for that reason may commend itself to judges of this jurisdiction as useful guidance. It is, in effect, a useful summary of sentences handed down in England and Wales and how each type of murder is ranked in seriousness. Unlike the five categories now found in England and Wales legislation, it adopted three categories being: -
    1. The normal starting point i.e. 12 years
    2. The higher starting point i.e. 15/16 years and
    100. Very serious cases.
         
21. The author of that earlier guidance was Lord Bingham CJ. Whether the Chief Justice in this jurisdiction wishes to issue a similar Practice Direction is, of course, a matter for him. In the absence of such a Direction we commend the words of Lord Bingham as, if no more, useful guidance to judicial officer within this jurisdiction to assist them in determining this minimum term. For that reason, we set out here some of the relevant provisions.

N.3 The decision in Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim 1762, [2005] 1 Cr. App. R. 3, [2005] 1 Cr. App. R. (S.) 67 gives detailed guidance as to the correct approach to this practice and judges passing mandatory life sentences where the murder was committed prior to 18 December 2003 are well advised to read that judgment before proceeding.

N.4 The practical result of that judgment is that in sentences where the murder was committed before 31 May 2002, the best guide to what would have been the practice of the Secretary of State is the letter sent to judges by Lord Bingham CJ on 10th February 1997, the relevant parts of which are set out below.

N.5 The practice of Lord Bingham, as set out in his letter of 10 February 1997, was to take 14 years as the period actually to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder. Examples of factors he outlined as capable, in appropriate cases, of mitigating the normal penalty were:

(1) Youth;

(2) Age (where relevant to physical capacity on release or the likelihood of the defendant dying in prison);

(3) [Intellectual disability or mental disorder];

(4) Provocation (in a non-technical sense), or an excessive response to a personal threat;

(5) The absence of an intention to kill;

(6) Spontaneity and lack of premeditation (beyond that necessary to constitute the offence: e.g. a sudden response to family pressure or to prolonged and eventually insupportable stress);

(7) Mercy killing;

(8) A plea of guilty, or hard evidence of remorse or contrition.

N.6 Lord Bingham then listed the following factors as likely to call for a sentence more severe than the norm:

(1) Evidence of planned, professional, revenge or contract killing;

(2) The killing of a child or a very old or otherwise vulnerable victim;

(3) Evidence of sadism, gratuitous violence, or sexual maltreatment, humiliation or degradation before the killing;

(4) Killing for gain (in the course of burglary, robbery, blackmail, insurance fraud, etc.);

(5) Multiple killings;

(6) The killing of a witness, or potential witness, to defeat the ends of justice;

(7) The killing of those doing their public duty (policemen, prison officers, postmasters, firemen, judges, etc.);

(8) Terrorist or politically motivated killings;

(9) The use of firearms or other dangerous weapons, whether carried for defensive or offensive reasons;

(10) A substantial record of serious violence;

(11) Macabre attempts to dismember or conceal the body.

N.7 Lord Bingham further stated that the fact that a defendant was under the influence of drink or drugs at the time of the killing is so common he would be inclined to treat it as neutral. But in the not unfamiliar case in which a couple, inflamed by drink, indulge in a violent quarrel in which one dies, often against a background of longstanding drunken violence, then he would tend to recommend a term somewhat below the norm.

N.8 Lord Bingham went on to say that given the intent necessary for proof of murder, the consequences of taking life and the understandable reaction of relatives to the deceased, a substantial term will almost always be called for, save perhaps in a truly venial case of mercy killing. While a recommendation of a punitive term longer than, say, 30 years will be very rare indeed, there should not be any upper limit. Some crimes will certainly call for terms very well in excess of the norm.

The normal starting point of 12 years

N.11 Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in paragraph N.13. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph.

N.12 The normal starting point can be reduced because the murder is one where the offender’s culpability is significantly reduced, for example, because: -

(a) the case came close to the borderline between murder and manslaughter; or

(b) the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or

(c) the offender was provoked (in a non-technical sense) such as by prolonged and eventually unsupportable stress; or

(d) the case involved an over-reaction in self-defence; or

(e) the offence was a mercy killing.

These factors could justify a reduction to 8/9 years (equivalent to 16/18 years).

The higher starting point of 15/16 years

N.13 The higher starting point will apply to cases where the offender’s culpability was exceptionally high, or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: -

(a) the killing was ‘professional’ or a contract killing;

(b) the killing was politically motivated;

(c) the killing was done for gain (in the course of a burglary, robbery etc.);

(d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness);

(e) the victim was providing a public service;

(f) the victim was a child or was otherwise vulnerable;

(g) the killing was racially aggravated;

(h) the victim was deliberately targeted because of his or her religion or sexual orientation;

(i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing;

(j) extensive and/or multiple injuries were inflicted on the victim before death;

(k) the offender committed multiple murders.

Variation of the starting point

N.14 Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case.

N.15 Aggravating factors relating to the offence can include:

(a) the fact that the killing was planned;

(b) the use of a firearm;

(c) arming with a weapon in advance;

(d) concealment of the body, destruction of the crime scene and/or dismemberment of the body;

(e) particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time.

N.16 Aggravating factors relating to the offender will include the offender’s previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk.

N.17 Mitigating factors relating to the offence will include:

(a) an intention to cause grievous bodily harm, rather than to kill;

(b) spontaneity and lack of pre-meditation.

N.18 Mitigating factors relating to the offender may include:

(a) the offender’s age;

(b) clear evidence of remorse or contrition;

(c) a timely plea of guilty.

Very serious cases

N.19 A substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present. In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or no hope of the offender’s eventual release. In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case.

22. The recommendation made in this case at the time of the imposition of the mandatory sentence of life imprisonment was a term of eight years. At the time of imposition, it was permissible for the Minister to allow the prisoner to be released even earlier than the ten years now prescribed.
23. Counsel for the Appellant submitted, after being provided with an adjournment to consider the three categories previously followed in England and Wales, that this offence should fall within the 15/16 year starting point. Counsel for the Respondent submitted that it fell within the very serious category. On a sentencing appeal this Court considers that any finding that the offending fell within either category would not be upset on appeal. There are reasons which, if accepted, place the offending comfortably within either category. There is no reason, in our view, to place this offence within the normal starting point of twelve years category.
24. Considering the facts of this case, and applying the guidelines found above, we therefore consider that the term of eight years to be manifestly inadequate. Such a term fails properly to reflect the gravity of this offence. We reach that conclusion noting the age of the victim, his relationship with the offender, the obligation of the offender as a parent, the sustained nature of the conduct, and the sheer brutality of the crime against a young and helpless victim. If it does not fall within the very serious category, then the offence certainly falls within the higher starting point of 15/16 years. It was aggravated by the period over which the conduct took place. It is mitigated by a plea of guilty, albeit after the contested trial had begun and after another vulnerable witness has given evidence.
25. This matter comes before us on appeal. In the court below a substantially lower minimum term was specified. As we point out above, this murder falls between the very serious category and the higher starting point of 15/16 years. Whilst on appeal we are prepared to accept that this offence could fall within either and impose a minimum term on that basis, that should not be taken as any finding that this offence was not close to, even if not within, the very serious category of offences that would attract a substantially higher minimum term if it were approached as it should be at first instance.
26. In those circumstances we would set the starting point at twenty years and reduce the term through mitigation (remorse, guilty plea) by a period of two years. That would indicate a minimum term to be served of eighteen years.
27. There is nothing contained within the Correctional Services Act or subsequent Regulations which prevents the judicial officer from imposing a minimum term to be served along with the mandatory life sentence. There is, however, a potential for conflict between the two if the recommended minimum term and the prescribed ten year minimum do not coincide. In this case there is such a conflict, although the conflict results in a minimum ten years after which an application can be made to the Parole Board whereas the minimum term set through the sentencing process is substantially longer than that ten years.
28. The conflict, we would suggest, should not be allowed to exist for any longer than it takes for the Legislature to resolve the situation with amendments to the Regulations following the spirit of this judgment. We do not, however, feel that it is necessary or even open to this Court to declare that the Regulations in their existing form are ultra vires.
29. This is an appeal against sentence in the criminal jurisdiction of this Court. It is not a direct attack on the validity of the Regulations brought under section 18 of the protective provisions of the Constitution. The Attorney General is not a party to these proceedings. Whilst we accept the submission that this Court could in a criminal matter declare legislation to be ultra vires where its effect is to directly affect the ability of a court to hold a fair trial in accordance with the protective provisions found in Part II of the Constitution, this is not such a case.
30. In this case, the Regulations provide for a substantially shorter minimum term than we believe should be served. The conflict here falls in favour of the prisoner. Whilst we can appreciate the intellectual argument in favour of resolving the potential conflict in future cases which may result in a position less favourable to an Appellant in other cases, this is not one of them and therefore the imperative to resolve the matter does not arise.
31. We further note that the Regulations as they presently appear are necessary to guide the Parole Board in dealing with those cases where life sentences have been imposed without any corresponding imposition of a minimum term. Such sentences will be in the majority given that there was, prior to this legislation, no purpose to be served in making any minimum term recommendation
32. We express the hope that before any potential conflict becomes actual (if indeed it ever does given the normal starting point of twelve years) legislation or regulations are drafted acknowledging that the minimum term be set as part of the sentencing process and regarded by the Executive and the Parole Board as the time at which an offender may make application to be considered for parole. It would, we note, require an amendment to the Constitution to provide otherwise. The Regulations will still be required to specify a minimum term before which parole may be sought for that category of offenders whose sentence does not provide for any minimum term. The new category, where a minimum term has been set, could be catered for through a provision recognising the minimum term recommendation as the time at which parole may be sought for the first time.
33. In the event, this appeal is allowed. We set aside the recommendation of a minimum term of imprisonment to be served as part of the life sentence and replace it with a minimum term to be served of eighteen years. We make no order concerning the validity of the present Correctional Services Regulations. The sentence of life imprisonment remains the sentence of the court.
    

......................................................
Goldsbrough P

......................................................
Ward JA

......................................................
Hansen JA

---

^[1] 919950 19 E.H.R.R.333
^[2] unpublished
^[3] [1999] ECHR 171; (2000) 30 E.H.R.R. 121