Bakewell v The Queen
[2009] HCATrans 133
[2009] HCATrans 133
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D5 of 2009
B e t w e e n -
JONATHAN PETER BAKEWELL
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 16 JUNE 2009, AT 10.18 AM
Copyright in the High Court of Australia
MR M.L. ABBOTT, QC: May it please the Court, I appear with my learned friend, MR I.L. READ, for the appellant in this matter. (instructed by Legal Aid Commission)
MR M.P. GRANT, QC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with my learned friend, MS S.L. BROWNHILL, for the respondent. (instructed by Solicitor for the Northern Territory)
MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR N.M. WOOD for the Attorney‑General of the Commonwealth intervening in the interests of the respondent. (instructed by Australian Government Solicitor)
MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS C.L. CONLEY, on behalf of the Attorney‑General for Western Australia intervening in support of the respondent. (instructed by State Solicitor for Western Australia)
MR M.G.SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.G. RENWICK, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor for New South Wales)
MS P.M. TATE, SC, Solicitor‑General for the State of Victoria: May it please the Court, I appear with my learned friend, MR S.P. DONAGHUE, for the Attorney‑General for Victoria intervening. (instructed by Victorian Government Solicitor)
MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear on behalf of the Attorney‑General for the State of South Australia with my learned friend, MR S.A. McDONALD, intervening in support of the respondent. (instructed by Crown Solicitor for the State of South Australia)
FRENCH CJ: The Court has sent a communication to the parties indicating that it invites submissions first from the Northern Territory and South Australia in relation to the operation of the interstate transfer of prisoners legislation in the context of this particular matter and, in particular, the effects of section 23 of the Prisoners (Interstate Transfer) Act (NT). Yes, Mr Grant.
MR GRANT: Yes, your Honours, if I could say something briefly to start with about the nature and purpose of this scheme. It is clearly a reciprocal legislative scheme and one purpose and operation of the reciprocal legislation is that transferred prisoners will stand in the same position after transfer as they stood before transfer in respect of both sentences and minimum terms.
FRENCH CJ: Can I ask just before you go on, is this the product of a formal intergovernmental agreement or is it the application of model legislation agreed through the Standing Committee of Attorneys‑General?
MR GRANT: Your Honours, it was an initiative of the Standing Committee of Attorneys‑General.
FRENCH CJ: Yes.
MR GRANT: Your Honours, most of the discussion of this legislation has taken place in the Supreme Courts for obvious reasons and we filed yesterday for your Honours’ benefit a supplementary list of authorities in relation to the prisoner transfer legislation. There is a useful discussion from Justice of Appeal Hope in the New South Wales Court of Appeal in Bermingham v Corrective Services Commission of New South Wales (1988) 38 A Crim R 412.
The relevant passage to which I would briefly take your Honours is at page 418 of that report at about point 3 the second full paragraph starting with the words “Legislation dealing with the interstate transfer of prisoners” down to just after the reference to “Abdi v Release on Licence Board” your Honours. You will see that one of the points his Honour makes is that one particular purpose of the reciprocal scheme is to transfer prisoners on terms that “they are neither advantaged nor disadvantaged by such a transfer.”
GUMMOW J: Well, you say “disadvantaged by such a transfer”, having regard to the law at what time?
MR GRANT: Having regard, your Honours, to the law as it stood at the date of transfer, subject to certain provisions in the reciprocal scheme which preserved to the transferring jurisdiction the entitlement to make orders and conduct reviews and hear appeals in relation to transferred prisoners, in our submission, the ‑ ‑ ‑
GUMMOW J: I am asking you because this particular problem that we are now confronted with I do not think appeared in these earlier cases, did it?
MR GRANT: Your Honours, this particular problem did not.
GUMMOW J: Namely, the intervention, if that is the word, of the 2008 Act back in the Northern Territory.
MR GRANT: No, your Honours, but the authorities have dealt with other issues such as the commutation of sentence by the transferring jurisdiction and the impact that that has in the jurisdiction to which the prisoner is transferred. Your Honours, we say the commencement of the Territory legislation, the Reform Act and the Amendment Act have no bearing on the operation of section 23 of the legislation which allows the transferring jurisdiction to continue in relation to a sentence that is imposed upon a prisoner who has been transferred to conduct reviews of that sentence and ‑ ‑ ‑
GUMMOW J: Sooner or later, Mr Grant, I am sorry to interrupt you, we have to get to the sections.
MR GRANT: Yes.
GUMMOW J: We do not get to the sections through what other judges have said on other cases, but on the points.
MR GRANT: Yes, perhaps if I could go directly then to section 23 of the Prisoners (Interstate Transfer) Act (NT). Your Honours, the section provides that:
Where pursuant to an order of transfer a prisoner is conveyed to a participating State -
for these purposes. Then from the time the prisoner arrives, every Territory sentence of imprisonment imposed ceases to have effect subject to certain qualifications and exceptions. The relevant qualification here is:
for the purpose of an appeal against or review of a conviction, finding of guilt, judgment or sentence made, imposed or fixed by a court of the Territory ‑ ‑ ‑
HAYNE J: Which particular part of that paragraph (a) is engaged in this case?
MR GRANT: The review of a sentence, your Honour. We say that the process that is contemplated by section 19 of the reform legislation is a review of the prisoner’s sentence. It is important in that context to have regard to section 3(3) of the Prisoners (Interstate Transfer) Act (NT) which extends if you like the meaning of the term “imposed or fixed by a court of the Territory”. You will see that the provision states:
For the purposes of this Act, a sentence of imprisonment imposed ‑
I will just read the relevant parts:
by the operation of, an Act or other law of the Territory . . . shall, except as prescribed by regulations . . . be deemed to have been imposed . . . by a court of the Territory -
Your Honours, we are able to inform you that there have been no regulations which would exclude the operation of section 3(3) so far as that keys into section 23 of the transfer legislation. Where the relevant exception in section 23(1)(a) speaks of reviews of sentences imposed or fixed by a court, that is also to include sentences imposed by operation of an Act or other law, which comprehends the operation.
KIEFEL J: In that regard, under the Northern Territory 2003 Amendment Act the heading to section 18 is “Sentence includes non‑parole period”.
MR GRANT: Yes, that is quite so, your Honour.
KIEFEL J: Paragraph (a) says:
the prisoner’s sentence is taken to include a non‑parole period of 20‑years –
I do not think that provision was amended with the later raft of provisions providing for a non‑parole period of 25 or more years, was it?
MR GRANT: No, it was not.
KIEFEL J: So when one has regard to the Prisoners (Interstate Transfer) Act (SA) section 27(1)(a) which talks about the sentence being the sentence of imprisonment “as defined in the interstate law of the participating State”, that would capture, would it not, the notion of a non‑parole period within the sentence via section 18 of the 2003 amendment?
MR GRANT: Precisely, yes.
KIEFEL J: But would it capture the non‑parole period of 25 or more years in the subsequent amendments because section 18 was not itself amended, that is to say, section 18 seems to contemplate only a non‑parole period of 20 years forming part of the sentence but if it is not again later amended to take up a non‑parole period of 25 or more years, is that considered to be part of the sentence for the purpose of the South Australian prisoners transfer legislation?
MR GRANT: We say yes, your Honour, by operation of section 28(2) of the South Australian legislation. If your Honours go to section 28(2) of the South Australian legislation you will see that it provides that:
Where a translated sentence or a minimum term deemed under subsection (1) to have been fixed by a corresponding court –
in this case the Territory court, is either varied on review by a court of the ‑ ‑ ‑
HAYNE J: Sorry, you said by a corresponding court of the Territory?
MR GRANT: No, a corresponding court of South Australia, which is the Territory court in these circumstances, your Honour.
HAYNE J: I thought not. You may be right, but I thought that the translation worked by 27(1) was that the Territory sentence – there was a deeming of the Territory sentence “to have been imposed on the person” – see the concluding words of 27(1)(a), “by a corresponding court of South Australia”.
MR GRANT: I am sorry, your Honour is quite correct. So where it is deemed to have been imposed by subsection (1) by a corresponding court, subsection (2) has application, and the deeming occurs by operation of subsection (1). Subsection (1), your Honours, provides that under a law of a participating State there has been fixed by a court, and of course, there is a similar provision – is your Honour reading 28(1) and 28(2) or is your Honour still at 27?
HAYNE J: I had gone back to 27 to understand the expression “corresponding court of South Australia” as used in 28(2).
MR GRANT: Yes, your Honour.
HAYNE J: Now, if that is a wrong step, tell me.
MR GRANT: No, your Honour.
GUMMOW J: Section 28 is ancillary to 27, is it not?
MR GRANT: Well, 28 we say, your Honour, is the exception to 27 that is referred to in 27(1) where, after paragraph (b), it provides:
except as otherwise provided in this Act, shall be given effect to in South Australia, and the laws of South Australia shall apply, as if such a court had had power to impose the sentence –
That is subject to the various qualifications and restrictions contained in section 28.
FRENCH CJ: You have to bring your format provision into the purview of review basically?
MR GRANT: Yes, your Honour, and we say that the review is to be given a very broad interpretation in these circumstances. It is not limited to judicial review.
GUMMOW J: Why? I know it helps you, but why? Why must it be given ‑ ‑ ‑
MR GRANT: Because, your Honours, review is clearly used in contra distinction to an appeal, so it cannot be so limited. Review cannot be limited to judicial review because, in terms of the orders of superior courts on sentence, they are not amenable to judicial review. So, review in this context has a broader meaning which contemplates and comprehends the sorts of processes that are provided for under section 19 of the legislation.
FRENCH CJ: Does it not just comprehend the amplitude of possible ways in which a sentence may be varied? I mean, judicially there may be some statutory schemes in which you have a sentence imposed by a low‑level judicial officer which is subject to review by another, as it were, on the merits and not by way of appeal. That is just meant to cover all those possibilities, is it not?
MR GRANT: Yes, your Honour, but in those sorts of circumstances the sentence is not varied, it is quashed, and a fresh sentence imposed. On judicial review the matter is remitted back. In these circumstances, the notion that the matter is varied on review, we say, lends the term “review” a broader operation that would extend to the sorts of legislative schemes ‑ ‑ ‑
FRENCH CJ: Review by the effect of a statute?
MR GRANT: Yes.
FRENCH CJ: By operation of law?
MR GRANT: Well, your Honour, it is ‑ ‑ ‑
FRENCH CJ: It is an odd notion of review.
MR GRANT: In this case, in the particular context of section 19 of the reform legislation a review is, in fact, conducted by a court, and that is the Supreme Court of the Northern Territory, in order to determine whether there is a prescribed circumstance of aggravation and from there, if that is made out, to impose a different minimum non‑parole period whether in accordance with subsection 19(3), (4) or (5).
BELL J: Under the Criminal Code (NT) there is provision, is there not, for the referral of a conviction where some doubt exists as to guilt or the like. I have in mind the equivalent of the provisions of section 474 of the Crimes Act (NSW) and I think there are comparable provisions.
MR GRANT: I cannot answer your Honours questions. We will come back, your Honour, on that issue though.
BELL J: It is just that review would ordinarily embrace the notion of review following a referral of that character. one would think.
MR GRANT: It would, your Honour, which is not to deny that that review, as it is used in this context, extends to the operation of section 19 of the reform legislation.
BELL J: Section 19 of the reform legislation contemplates that the Director of Public Prosecutions may bring an application before the court.
MR GRANT: Yes, your Honour, whereupon the court is required to determine whether or not there is a prescribed circumstance of aggravation and also whether or not the operation of sections 19(4) and (5) are triggered to determine whether or not there should be some longer non‑parole period than 25 years or, in fact, no non‑parole period at all. We say that that is, in its full complement, an exercise of review by the Supreme Court of the Northern Territory, albeit pursuant to a specific statutory provision.
Your Honours, this was a matter that was raised by the appellant before this Court in the context of the first application that was brought by the Director and ultimately dismissed and the matter was subject to some consideration by Justice Southwood in Director of Public Prosecutions v Bakewell [2007] NTSC 49. His Honour deals both with the issue whether this is a review and the question whether it is a review of sentence that has been fixed or imposed by a court.
If your Honours go first to paragraphs [16] and [17]. His Honour there deals first with the question whether that non‑parole period fixed by section 18 of the reform legislation was imposed or fixed by a court. You will see that his Honour concludes that it was, essentially on two grounds, that:
ordinary sentencing principles which recognise that a non‑parole period is part of the sentence and is not a separate sentence –
referring back, of course, to section 18 that your Honour Justice Kiefel has raised, and then makes reference to section 3(3) of the Prisoners (Interstate Transfer) Act which states that sentences imposed by the operation of an Act, which term necessarily extends to non‑parole periods forming part of a sentence, are deemed to have been imposed by a court of the Territory..
His Honour then goes on at paragraphs [18], [19] and through to [21], to deal with the issue whether or not an application under section 19 of the Reform Act was a review within the meaning of section 23(1)(a) of the Prisoners (Interstate Transfer) Act, and his Honour concludes that it is, on the bases first in paragraph [20] of that decision that:
The ordinary and natural meaning of the word “review” includes the revision of a sentence by a court.
And the process contemplated by section 19 was, in essence, a revision of sentence. His Honour refers to Justice Burchett’s decision in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 where his Honour refers, amongst other things, to the dictionary definitions which made express reference to “Revision of a sentence” as one of the meanings of review.
The second basis on which his Honour formed the conclusion that this was properly review was the analysis conducted by this Court in Leach v The Queen or by Chief Justice Gleeson in Leach v The Queen where his Honour said that:
Section 19 confers upon the Supreme Court a power to make an order which substitutes a discretionary judicial decision for the otherwise mandatory effect of s 18.
His Honour concluded that thus characterised the process under section 19 of the Reform Act was in fact a process of review. So if it please, your Honours, that is the treatment which those two issues have previously received by the Supreme Court of the Northern Territory, those two issues arising under 23(1)(a), and we would adopt those conclusions in terms of the operation of section 23 in relation to this particular sentence.
Can we also, your Honours, make some further submission in relation to the proper construction. As this is reciprocal legislation and as your Honours have already observed it is necessary to look at the interaction between the Territory transfer legislation and the South Australian transfer legislation.
In our submission, the effect of section 27 of the Prisoners (Interstate Transfer) Act (SA) is to provide that the prisoner’s sentence is deemed to have been imposed by the Supreme Court of South Australia and is a translated sentence within the meaning of section 5 of that Act. Now, because of the qualifications in section 28 of the South Australian legislation, that deeming is apt to apply South Australian laws to administrative matters such as remissions and the ministerial aspects of parole once a prisoner has qualified for parole. Moving back then to section 28(2) of the South Australian legislation, it is the provision which reciprocates ‑ ‑ ‑
GUMMOW J: Can you just go back to 27(1) again. After paragraph (b) the subsection goes on:
by a corresponding court of South Australia and, except as otherwise provided in this Act, shall be given effect to in South Australia –
and you read the phrase “except as otherwise provided” as qualifying what follows –
and the laws of South Australia shall apply, as if such court –
et cetera. So you disapply the laws of South Australia because what?
MR GRANT: Because, for example, your Honour, in section 28(3) you will see that:
Nothing in this Act operates to permit in South Australia any appeal against or review of any conviction, judgment, sentence or minimum term made, imposed or fixed in relation to a person by a court of a participating State.
So there is one very clear restriction on the operation of the laws of South Australia in relation to the sentence, notwithstanding that the sentence is deemed to have been made by a corresponding court of South Australia and the laws of South Australia apply.
GUMMOW J: So you say 28(3) would have foreclosed any involvement of the South Australian parole authorities?
MR GRANT: No, your Honour. In administrative terms they still have a part to play so if under the determinations that have been made by the courts and under the laws of the Territory the appellant, or the transferred prisoner, speaking more generally, becomes entitled to parole it is a matter for the South Australian parole authorities to determine whether or not he should be released on parole and the conditions ‑ ‑ ‑
GUMMOW J: What section makes that so?
MR GRANT: Your Honour, if one looks at section 28(2) you can see that:
Where a translated sentence or a minimum term deemed under subsection (1) to have been fixed by a corresponding court of South Australia –
(a)is varied . . . on a review by –
reading relevantly –
a court of the participating State where the sentence or minimum term was imposed or fixed, the sentence or minimum term shall be deemed to have been varied to the same extent, or to have been quashed, by a corresponding court of South Australia ‑ ‑ ‑
FRENCH CJ: Anterior to that, from the point that the interstate transfer order takes effect and the transferred prisoner arrives in South Australia the sentence imposed by the Northern Territory Supreme Court engages with the South Australian legal system by it being treated as though made by a South Australian corresponding court and that will then engage with whatever the South Australian legislation provides in relation to the determination of release on parole or otherwise by the relevant parole authorities, so it is that “as if made by a South Australian corresponding court” that then picks up, presumably, whatever the administrative arrangements are for the operation of the parole board there.
MR GRANT: That is so, your Honour, in our submission how it operates and 28(2) ‑ ‑ ‑
FRENCH CJ: One assumes, of course, a perfect docking and the question is whether there is grit in the intersection by reason of what has happened in this case.
MR GRANT: If your Honours read section 23(1)(a) in conjunction with 28(2) of the South Australian legislation your Honours can see the reciprocation.
HAYNE J: Can we add to the provisions we should be looking at – can I draw your attention to 28(1) and 28(7), in particular, of the South Australian Act?
MR GRANT: Yes.
HAYNE J: Section 28(1) has the effect, does it not, in Mr Bakewell’s case, that when Mr Bakewell arrived in South Australia he was to be dealt with as if a 20‑year non‑parole period had been fixed?
MR GRANT: Yes.
HAYNE J: That result follows, does it not, from 28(1) as understood in the light of section – is it 5(3):
a sentence of imprisonment imposed, or originally imposed, by, or by the operation of, an Act . . . deemed to have been imposed, or originally imposed, by a court of that State or territory.
So the statutory fixing of the 20‑year non‑parole period, is that picked up by 5(3), put into 28(1), with the consequence that when Mr Bakewell arrived in the gaols of South Australia he was subject to a 20‑year non‑parole period?
MR GRANT: Yes, your Honour. We accept that operation.
HAYNE J: Pausing there, we then observe, do we not, 28(7). Section 28(7) provides that:
A non‑parole period in respect of a person subject to a translated sentence ‑
Stopping there, that is Mr Bakewell with 20 years:
may be fixed, extended or reduced by the appropriate South Australian court ‑
an expression identified in subsection (8). If that is right, the South Australian courts could fix, extend or reduce the non‑parole period apposite to Mr Bakewell, could they not? Again if that is right, and that is the premise that I direct your attention to particularly – but if that premise were right, what, if anything, is that saying about the content of the expression in 28(2)(a), on which you fasten, “varied or quashed on a review by . . . a court of the participating State”? On its face, is not the argument against you that parole, once he arrives in South Australia, is confided to the courts of South Australia, not to this unusual or distinct statutory intervention that is sought to be brought within the rubric of review by a court.
MR GRANT: Your Honour, there is no denying that section 28(7) of the South Australian legislation and its counterparts elsewhere has been considered problematic.
HAYNE J: We have the problem now, Mr Solicitor.
MR GRANT: Yes. It has been addressed by those Courts, your Honour. I will take your Honour to the manner in which they have dealt with it. The first point to be made is that there is, on face at least, an inconsistency between the operation of section 28(3) which proscribes any proceedings or conduct in South Australia.
HAYNE J: What it proscribes is “appeal against or review of” which is, I would have thought, a textual difficulty which is not working in your favour with the construction of 28(2), but there we are.
MR GRANT: Yes, your Honour. Any review of a minimum term made – amongst other things, a minimum term made, imposed or fixed by the participating State, which in this case is the Territory. If one accepts that the operation of this legislation is such that the 25‑year period, if that subsequently be imposed, is taken to be imposed or fixed by a court of the Territory for these purposes, that would preclude the appropriate South Australian court from making any change in relation to the non‑parole period.
We draw attention to the fact that “minimum term” as it appears in this legislation has been interpreted to include a non‑parole period. In that respect we refer your Honours to the decision of Justice of Appeal Priestley in Abdi v Release on Licence Board.
GUMMOW J: Before we go all these cases, if one looks at section 28, and one looks at section 28(3); one puzzles about what “review” means; one looks at section 28(7) – one has to read them together. Section 28(7) suggests involvement of non‑parole determinations in South Australia, does it not? Does that not colour what meaning you then give to “review” under 28(3)?
MR GRANT: Not as 28(7) has been interpreted, your Honours, including by the ‑ ‑ ‑
GUMMOW J: Well, just tell us how it has been interpreted. None of these cases bind us, you see, so you have to persuade us.
MR GRANT: Yes, I understand that, your Honour.
GUMMOW J: What are they to say?
MR GRANT: Non‑parole period, as it appears in section 28(7), has been interpreted to mean a non‑parole period originally fixed by a South Australian court, so that in circumstances where a prisoner has been sentenced in a South Australian court, is subsequently imprisoned in another jurisdiction and then transferred back to South Australia pursuant to the transfer legislation, section 28(7) allows the South Australian court to make orders in relation to the non‑parole period originally set by the South Australian court. If I can take your Honours to the decision of the Court of Criminal Appeal in South Australia, not on the basis ‑ ‑ ‑
CRENNAN J: How does that fit with the reference to a translated sentence, what you are just putting, in relation to subsection (7)?
MR GRANT: Because, your Honour, it is not a non‑parole period in the translated sentence but a non‑parole period in respect of a person who is subject to a translated sentence. So it is a reference back to an original sentence imposed by the South Australian court. Your Honours, that very circumstance arose for consideration in the matter of R v Romeo (1996) 89 A Crim R 149 considered by the Court of Criminal Appeal in South Australia. Your Honours will see how that court dealt with the matter. If your Honours go to page 152 of that report, his Honour Justice Nyland, with whom the other members of the court agreed, said that he was unable to ‑ ‑ ‑
GUMMOW J: Her Honour, I think.
MR GRANT: Her Honour. I beg your Honours’ pardon. Her Honour, with whom the other judges agreed, at point 4, the sentence starting, “I am however unable to accept this argument”.
GUMMOW J: What page is this?
MR GRANT: Page 152 of the report, your Honours.
HAYNE J: What is the oddity in it, Mr Solicitor, that if a prisoner is transferred to the prisons of another State, a factor which affects whether that prisoner should be admitted to parole surely or what he or she has been up to in gaol, will not the local authorities know about that rather than the authorities of the jurisdiction from which that person was transferred possibly many years earlier?
MR GRANT: They will, your Honour, but the question whether a prisoner should or should not be admitted to parole is a different issue to whether or not the receiving jurisdiction is able under the legislation to interfere with a minimum non‑parole period that has been set by the jurisdiction which has transferred the prisoner. Of course, the purpose or one primary purpose and object of the reciprocal scheme is that transferring jurisdictions retain jurisdiction in relation to matters of sentence and minimum term. It is entirely a matter for the South Australian authorities, your Honour, we accept, once the prisoner has served the minimum non‑parole period as to whether or not that prisoner should be released on licence.
FRENCH CJ: It is, as you say, an oddity because ordinarily one would expect the non‑parole period, if it is going to be varied, to be varied on appeal to the court in the jurisdiction which imposed the sentence. But the difficulty with (7) is, when you read it with (8) in the definition of “appropriate South Australian court” it is hard to see how you can fit into (7) the concept of somebody who was originally sentenced by a South Australian court.
HAYNE J: Assume somebody is doing 10 with an eight imposed in the Territory and has also got eight with six from a South Australian court and they are ultimately put into a South Australian gaol. There are two different non‑parole periods, I understand that, but one would have thought that the prisoner serves the longer of the two non‑parole periods, being eligible for release. So that what is the problem that Romeo is looking to solve by saying, well we can adjust the South Australian – in my example eight with six – we can adjust the six because the person has got 10 with eight from a corresponding State? What are you doing?
MR GRANT: The problem it is looking to solve, your Honour, is the potential that tampering with a non‑parole period fixed by the transferring jurisdiction falls foul of section 28(3), which precludes the receiving State from conducting any sort of review of the minimum term imposed by the transferring State. That is the difficulty.
FRENCH CJ: As a matter of interest, was this picked up in the revised 2004 model legislation?
MR GRANT: No, your Honour.
FRENCH CJ: It was a model Bill.
MR GRANT: Not that we are aware, your Honour. The issue still seems to be a matter of controversy. We looked at a Victorian decision handed down after 2004 where it was still an issue.
KIEFEL J: Could I take you back to section 27(1)(a)? At the time that Mr Bakewell was transferred in April 2005, he was subject to a sentence imposed by the court of life imprisonment. But the sentence had not, itself, included a non‑parole period. That was brought about by section 18, which said that the sentence is to be taken to include a non‑parole period.
MR GRANT: That is correct, your Honour. On 11 February 2004, so prior to his transfer to South Australia.
KIEFEL J: Does section 27(1)(a) then pick up the non‑parole period referred to in section 18, simply because it has been deemed, rather than imposed by a court?
MR GRANT: Yes, your Honour.
KIEFEL J: That is what you say.
MR GRANT: Yes, by operation effectively of section 3(3) of the Northern Territory prisoner transfer legislation.
HAYNE J: Well, 5(3) of the State Act I would have thought would have been the one that was engaged.
MR GRANT: And in terms, your Honour, of any revision of that sentence after the date of transfer that is a matter which is dealt with by section 28(1) of the South Australian legislation which provides that:
Where under a law of –
for these purposes, the Territory, there is fixed by a Territory court:
a minimum term of imprisonment . . . during which minimum term the person subject to the sentence is not eligible to be released on parole then, except as otherwise provided in this Act, the minimum term shall be deemed likewise to have been fixed by the corresponding court -
Of course subsection (2) then contemplates changes to that minimum term, variations on review or variations otherwise on review under section 28(2)(b) to either the sentence or the minimum term. They are then deemed to have been varied to the same extent as a result of action taken by South Australian authorities. Of course, your Honours, sections 28(1) and 28(2) are important because in relation to the operation of 28(1), the minimum term of 20 years that was in place by operation of the legislation at the date of transfer in 2005 is only translated to South Australia by operation of section 28(1), otherwise it would have no status in South Australia and the translated sentence would only be that fixed by a court in the narrow sense which would be the sentence of life without parole.
BELL J: Subject to section 28(7) with which we have been concerned which would then admit, would it not, of consideration of the operation of section 32 of the Criminal Law (Sentencing) Act (SA) which permits a person serving a sentence of imprisonment not subject to an existing non‑parole period to make application?
MR GRANT: Yes. If one accepts, your Honours, that 28(7) is not precluded of that operation by 28(3) of the South Australian legislation because we say, your Honours, that to disturb the minimum term which is imposed by a Territory court or by operation of Territory law would be to permit in South Australia a review of that minimum term in relation to the person transferred. But, your Honours, we cannot shy away from the fact that there is no comfortable way of reconciling sections 28(3) and 28(7) of the South Australian legislation.
FRENCH CJ: A person or authority referred to in 28(2)(b), I take it, stands in contrast to the action by a court in 28(2)(a).
MR GRANT: Yes, your Honour. It might be possible to argue that a court is an authority in these circumstances, given that it is entrusted with a particular function to undertake a revision of sentence. Your Honour is quite right in saying that it would appear that the provision having particular application to revisions by courts is section 28(2)(a).
FRENCH CJ: This is presumably just designed to pick up – because it is following model legislation – a range of different statutory schemes that may exist among different States and Territories and also from time to time in a particular State or Territory.
MR GRANT: In relation to the revision of sentence.
FRENCH CJ: Yes.
MR GRANT: As his Honour Chief Justice Gleeson observed in Baker, it is to be accepted that there will be changes to sentencing regimes that impact on prisoners who are serving as a result of various types of legislative and administrative and judicial interventions during the course of that sentence. The intention, in our submission, was to throw the net as broadly as possible in terms of the types of provisions that might be effected by transferring jurisdictions consistent with the purpose of the reciprocal scheme, which was to leave substantive matters dealing with sentences and minimum terms with the referring jurisdiction.
GUMMOW J: Why cannot one say this? When Mr Abbott’s client arrived in South Australia, you ask yourself, what was his sentencing position? Section 18 of the Northern Territory Act had operated in 2004, so he had a non‑parole period of 20 years. Is that right?
MR GRANT: That is correct, your Honour.
GUMMOW J: Then you look at section 28(3). It says:
Nothing in this Act operates to permit in South Australia any appeal against or review of ‑
that operation of section 18, is that right, in other words, to any interference with the 20‑year non‑parole period, right?
MR GRANT: Yes, your Honour. But “permit” in South Australia we would say would be permit by the order or operation of some South Australian authority or court, subject to that qualification because section 28(2) clearly contemplates that after the date of ‑ ‑ ‑
GUMMOW J: But “thereafter”, in particular what happened in 2008, is not the point. Northern Territory has gone. He is in South Australia now. There is no violation of 28(3) in South Australia not giving full credit, any credit, to the 2008 Act.
MR GRANT: Well, there is in this sense, your Honour.
GUMMOW J: The situation as between the two governments, the two polities, is crystallised when he arrives in South Australia.
MR GRANT: We say not, your Honour, because section 23 of the Northern Territory Act contemplates that the Northern Territory courts or authorities may still conduct a revision of sentence.
GUMMOW J: That is the question. Where do you find a footing for that in the South Australian law? They have the body. They have this gentleman incarcerated. You have not, they have.
MR GRANT: Yes, they do.
GUMMOW J: Basically the criminal law operates on the situation of the individual, does it not?
MR GRANT: Yes, it does, your Honour.
GUMMOW J: He is local in that sense. How do you achieve a situation where under the law in South Australia the 2008 Act has any effect?
MR GRANT: Because the sentence was imposed by the Territory. Section 23 of the Territory legislation contemplates revision of sentence after transfer. The reciprocal provision in the South Australian legislation is section 28(2) which also contemplates revision of both sentences and minimum terms after the date of transfer.
KIEFEL J: But section 23(1)(a) would not predict revision ad infinitum. It would be predicting, would it not, an appeal against conviction or a review of sentence under the time limits set by the statute.
MR GRANT: Your Honours, we would submit that it cannot be read that narrowly for the very reason identified or postulated by the Chief Justice, that is, when this reciprocal legislation was passed, the clear purpose and intention was that in respect of transferred prisoners the transferring jurisdiction would retain authority in relation to substantive matters of sentences and minimum terms. There are many circumstances in which, following the imposition of an original sentence, there can be a revisional review of that sentence, and of course ‑ ‑ ‑
KIEFEL J: But that is usually through separate parole provisions, not usually when you have a non‑parole period imposed by legislation upon a sentence.
MR GRANT: No, your Honour, but that is not to deny the submission that subsection 23(1)(a) casts the net more broadly than a standard appeal against sentence or review of sentence. It speaks of any review of a sentence made, imposed or fixed by a court of the Territory and there is no temporal limitation on that particular exception. Your Honour, it says, the translated sentence ceases to have effect except for those purposes and those purposes are, we submit, very broad. The other point to make ‑ ‑ ‑
KIEFEL J: The temporal limitations would come under other provisions dealing with appeals against sentence, would they not? I mean, if you are looking at the reciprocal legislation, it is obviously looking at trying to fix a time at which the receiving State takes over and it would not have been, one would thought, intended that the referring State continues to have power in relation to – I shall not use the word “tinkering”, but with sentences. In the normal course of things, an appeal against sentence, which was allowed for under section 23 and predicted for under section 28(2) of the South Australian Act, would be over within a fairly short of period of time and thereafter the South Australian provisions for parole would take effect. Is it not roughly how this scheme should work?
MR GRANT: Certainly, your Honour, that is how matters would proceed in the usual course but the way the scheme has been constructed, it has, in our submission, an operation of more extended duration than that. Your Honours, it must always be borne in mind that in this particular case, when the appellant was first transferred to South Australia, it is true that his sentence, as translated upon that transfer, was life with a minimum non‑parole period of 20 years but subject to, under the Territory scheme, a further application by the Director which could not be made until the start of the 19th year of sentence which provided for a court, if satisfied of certain matters, to extend the non‑parole period. It is really a feature of the ‑ ‑ ‑
KIEFEL J: It would still at least be caught in time but at the time of the transfer the legislative provisions relating to sentence would be understood to operate. There would not be an open‑ended ability for the Northern Territory legislature to alter that, you would think, under reciprocal legislation.
MR GRANT: Well, your Honours, we say that on a plain reading of 23(1)(a) that facility is there, and we say that, secondly, it is not as if the alteration was not within contemplation as at the date of transfer because the sentence that he had as at the date of transfer was with a 20‑year non‑parole period, minimum non‑parole period, but as we say, subject to further application and determination by the court. So, your Honours, what has happened since the date of transfer was always in contemplation as at the date of transfer in terms of ‑ ‑ ‑
FRENCH CJ: How significant to your argument is the involvement of the court? For example, if by Northern Territory legislation introduced after the transfer it was provided that any prisoner convicted of a homicide offence who had been found or stated by the sentencing judge to be “highly dangerous”, as in this case, was never to be released? Now, it is susceptible to judicial review because there is a condition attached to it as to what the sentencing judge had said, but effectively it is legislative action that falls within the scope of review.
MR GRANT: It would, your Honour, because of the extending operation of sections 3(3) in the Territory legislation and 5(3) in the ‑ ‑ ‑
FRENCH CJ: That is right, picking up by the Act. Yes, I see.
MR GRANT: Yes, yes.
FRENCH CJ: So the long arm of the legislature ‑ ‑ ‑
MR GRANT: Depending on the words used, your Honour, but if they were properly ‑ ‑ ‑
FRENCH CJ: ‑ ‑ ‑ reaches into South Australia indefinitely.
MR GRANT: Yes, if that was properly characterised as a review of the sentence then, yes, we would say it falls within the scope of 23(1)(a). If it please your Honours, they are the respondent’s submissions in relation to that issue.
FRENCH CJ: Yes, is there anything that the solicitor for South Australian would wish to add?
MR HINTON: If the Court pleases, I adopt the submissions of my learned friend, the Solicitor‑General for the Northern Territory. If I can briefly perhaps cast a little bit of light on that section 28(7)?
GUMMOW J: You can take as much time as you like in casting any light.
MR HINTON: That vexed section 28(7), it was introduced as an amendment to the Act in 1984, and the intention primarily at the time, as is reviewed in the second reading speech which I can make available to the Bench ‑ ‑ ‑
GUMMOW J: We had better have it.
MR HINTON: ‑ ‑ ‑ was to ensure that the South Australian court had available to it a power to ensure that anyone transferred got the full benefit of their remissions. Because of the differing systems by which remissions are awarded amongst or between the States and the Territories and even at the Commonwealth level there had to be a means or a discretion so that you could level things out at the end of the day. As my learned friend, the solicitor for Northern Territory, made clear, a transfer prisoner was then not disadvantaged by virtue of the transfer because in South Australia we have since abandoned the idea of remissions entirely. So subsection (7) was not intended to be ‑ ‑ ‑
FRENCH CJ: When you say “abandoned the idea of remissions”, do you mean remissions in relation to the finite sentence or remissions in relation to the minimum term or both?
MR HINTON: Both. The policy of truth in sentencing, what you are awarded is what you serve, subject to executive discretion, not based upon remissions. So, if you have one State with that sort and another with remissions, dependent upon good behaviour, public holidays, et cetera, then you need to have a means by which the two can balance out if you transfer form one of those States. That was the intention behind subsection (7).
KIEFEL J: If that is the case, how does it factor in with subsection (6)(b) which says that a person shall be credited with remissions according to the South Australian ‑ ‑ ‑
MR HINTON: Subsection 6(b) is remissions before, (6)(c) is, of course, remissions after, but in South Australia you would not get any at present, so you would be disadvantaged if you then ‑ ‑ ‑
KIEFEL J: I am sorry, I do not follow that.
MR HINTON: In South Australia, at present ‑ ‑ ‑
KIEFEL J: Subsection (6)(b) is before and (6)(c) is after?
MR HINTON: Yes. So, if you come from a State or Territory where your sentence is determined and the fact that you can earn remissions is taken into account, then the remissions you have earned prior to your transfer would be accounted for, (6)(b), but then you would be disadvantaged because in South Australia, once you get into the South Australian system, remissions do not count any more.
KIEFEL J: What about (6)(c), as you have pointed out, there is not an entitlement to earn further ‑ ‑ ‑
MR HINTON: There is no entitlement in South Australia and so you would then have to adjust under subsection (7).
KIEFEL J: I see, yes.
MR HINTON: In that way subsection (7) can be read with subsection (3) and we have a very tight control on what the South Australians can do with respect to the sentence imposed upon a transferred prisoner. It can only be varied under subsection (7) to ensure that they get their benefit of whatever they were entitled to in their own State or Territory. Other than that, it cannot in any way be interfered with, save under subsection (4) where it is an indeterminate sentence.
FRENCH CJ: Does this mean that the non‑parole period can be reduced under the provisions of subsection (7) to take account of remissions that would have been earned in the Northern Territory against minimum term but are no longer available in South Australia?
MR HINTON: Yes, if your Honour pleases.
GUMMOW J: So you say subsection (7) is designed to retain benefits, as it were, for the prisoner?
MR HINTON: Yes.
HAYNE J: That is odd to have a provision for extension of the non‑parole period on the application of the Crown. Some benefit.
MR HINTON: Of course, there can be many difficult circumstances that can arise, such as Romeo’s Case where, of course, he commits his offences in New South Wales whilst on parole for offences in South Australia with the effect that automatically he is required in South Australia to serve the balance of his parole and yet there is some delay. So, of course, you need then a discretionary power in order that you can adjust so that he is not prejudiced in either way. That is, in effect, what their Honours used this ‑ ‑ ‑
HAYNE J: I just do not follow, Mr Solicitor. I know I am being very slow about it. You will have to explain it to me better. I just am not following. What is the point you say about (7), that (7) is concerned to provide adjustment for what circumstance?
MR HINTON: For any circumstance where by virtue of the transfer you may lose a benefit, in terms of time to be served, that would have accrued had you stayed in the State or Territory from which you were transferred. If your Honour pleases.
FRENCH CJ: That explains reduction of non‑parole period or fixing of non‑parole period, it does not, as Justice Hayne pointed out, help us with the extension of non‑parole period.
MR HINTON: That is where we have the other sort of circumstance, such as that contemplated in Romeo’s Case, where you have difficulties in accounting for time by virtue of different systems between States; not just remissions any more, but in the context of Romeo, it was the automatic cancellation of parole and the fact that he could not be backdated in South Australia which had an effect that he was due on the South Australian side of the border ‑ ‑ ‑
GUMMOW J: You had better explain Romeo’s Case because it is becoming like a slightly ‑ ‑ ‑
FRENCH CJ: The cancellation of parole is an administrative process done by a parole board, is it not?
MR HINTON: Yes.
FRENCH CJ: It does not impact on the minimum term.
MR HINTON: No, it does not, but it can have the effect that you are immediately required to serve the balance of the head sentence.
FRENCH CJ: Yes, I understand that. The minimum term was always there. The minimum term is, in effect, a direction to the parole board that it cannot entertain consideration of release on parole before that time has expired.
MR HINTON: Agreed, with respect. But in Mr Romeo’s case, of course, he had served his minimum term, he no longer had one. So he is sentenced by New South Wales. He is also subject to an automatic cancellation of parole in South Australia. He suddenly finds himself in the position that is set out at page 150 of the report at about point 6 and onwards. To overcome the discrepancy, the argument is resort may be made to subsection (7).
BELL J: In South Australia, if a prisoner is serving balance of parole, does the parole board not have the power to consider a further grant of parole at any time?
MR HINTON: No, your Honour. You make a further application for a fresh non‑parole period to a court.
BELL J: I see. Is that under section 32 of the Criminal Law (Sentencing) Act?
MR HINTON: I believe so.
BELL J: But once parole is revoked, Mr Solicitor, in South Australia, it is necessary for a further non‑parole period to be set, is that the position?
MR HINTON: I would have to check that, if your Honour pleases, because in South Australia there is a division between two types of sentences. Anything greater than five years, an offence of violence, I am sure you have to apply for a new non‑parole period. I am not sure if that applies equally to a non‑violent offence where the sentence is less than five years. If the Court pleases. I just sought to explain that.....subsection (7), I adopt the submissions of my learned ‑ ‑ ‑
GUMMOW J: How do you deal with the possibility of the Crown application under subsection (7)?
MR HINTON: I cannot think of a circumstance at the moment, save that it is not unknown in South Australia for Correctional Services to write to the Crown where there is an error or there is an arithmetic difficulty that makes it difficult for them to determine release dates. In that circumstance, the Crown will bring the matter back on and apply for a variation so that the discrepancy can be sorted out.
If the Court pleases, I will make sure that second reading speech is made available. I draw on my learned friend’s submission that there are significant constraints upon what can be done on the South Australian side of the border. There is in section 28(2), in particular (b), a reservation to the Northern Territory for any variation and, in my submission, if the variation did not fall within section 28(2)(a), then it would undoubtedly fall within (2)(b) so it can be catered for on the South Australian side of the border. There is no difficulty ‑ ‑ ‑
BELL J: That seems to stretch the language of the provisions somewhat, does it not? Mr Bakewell, as at the moment he arrived in South Australia, had a sentence and on your submission, as I understand it, adopting that of the Northern Territory, had a minimum term of 20 years.
MR HINTON: Conditional, if your Honour pleases. That was a submission my friend made. Section 18 of the Reform Act is expressed in terms of “subject to”. So it was always 20 years subject to the possibility of that application made 12 months before its expiration.
BELL J: But if we look at it at the point of the amending Act. The amending Act was expressed in relation to the transitional provisions in section 17 to apply:
to a prisoner who, at the commencement of this Act, is serving a sentence of imprisonment for life for the crime of murder.
Now, section 23 of the Northern Territory Act provided that the sentence of imprisonment on Mr Bakewell ceased to have effect on his arrival in South Australia pursuant to the scheme.
MR HINTON: It did not cease to exist. It ceased to have effect in the Territory.
BELL J: Yes.
MR HINTON: So a 20‑year non‑parole period subject to that condition remained in existence, and then if you fall within the exception, as my learned friend has submitted and I adopt, it can be varied on review.
BELL J: So under 28(2)(b) you say ‑ ‑ ‑
MR HINTON: I put it higher, if your Honour pleases. That is, in 28(2)(a) where is the reference to a review, it should be read consistent with section 23 of the Northern Territory, but failing that, it is ‑ ‑ ‑
BELL J: I understand that, but you were developing an argument that (2)(b) also applied, and I am having some difficulty understanding that the amending Act maintained Mr Bakewell’s sentence but gave the Director power to apply to the Northern Territory court.
MR HINTON: In our submission, to review it.
BELL J: And the Northern Territory court was empowered to act on that application and determine to fix a different and higher non‑parole period. You say that answers the description of action taken by a person or authority in the Northern Territory, being a reference to the application brought by the Director, is that the point?
MR HINTON: Yes, as a fallback, because at first instance it satisfies the description of a review, in (2)(a), if your Honour pleases.
BELL J: The Director’s application is review. That is adopting the submissions of the Northern Territory?
MR HINTON: Yes.
BELL J: How do you get there under 28(2)(b)?
MR HINTON: The only point to be made about 28(2)(b) is that South Australia necessarily acknowledges that there may be a variation by the participating State, the Northern Territory, during the lifetime of the incarceration of the transferee in South Australia. Perhaps it is in answer in part to Justice Kiefel’s point that there is the ongoing intention to cater for change of the sentence and the minimum period set by the original sentencing court or sentencing State, and it is not limited in any way in terms of time, but the primary submission is that made by my learned friend and adopted and that is this a review within the meaning of section 23(1) catered for within section 28(2)(a), if the Court pleases. Those are my submissions.
FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Abbott.
MR ABBOTT: Your Honour, we have prepared some written submissions in haste.
FRENCH CJ: Yes, thank you, we have received those.
MR ABBOTT: They do not cover, of course, all the matters that have fallen from this Court in the discussion with the Solicitors so perhaps I could put them to one side and proceed to say what our view of the South Australian Act is. In our submission, the starting point is that the Northern Territory has, in essence, surrendered jurisdiction in respect of Mr Bakewell and has allowed South Australia to assume jurisdiction over Mr Bakewell. That has occurred by a combination of both Acts. In South Australian terms, it occurred by virtue of section 10 of the South Australian Act where the Minister received a request for transfer to South Australia and thereafter, by virtue of section 27, which picks up in section 27(1) the operation of the Northern Territory Act by use of the words:
Where under an interstate law an order is issued for the transfer to South Australia of a person imprisoned in a participating State and the person is brought into South Australia pursuant to the order, then from the time the person arrives in South Australia‑
(a) any State sentence of imprisonment -
and I will come back to that because the words “as defined in the interstate law of the participating State” are significant because that then takes us to what is the definition of “a sentence” under the Northern Territory legislation –
will be deemed to have been imposed on the person –
So on the plain wording, we say, of sections 10 and 27, Mr Bakewell arrived in South Australia with a Northern Territory sentence of imprisonment, as defined in the Northern Territory Act. Thereafter, because it was then a translated sentence within the meaning of section 27, the laws in accordance with section 27(1):
except as otherwise provided in this Act, shall be given effect to in South Australia, and the laws of South Australia shall apply, as if such a court -
That must mean a South Australian court – an equivalent State:
had had power to impose the sentence and give or make the direction or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.
Then we come to section 28, the ancillary provisions relating to such sentences. My learned friends, the Solicitors‑General, say there is no temporal limit on section 28 whatsoever. The practical effect of that would be – my learned friend, the Solicitor‑General for Northern Territory, said it is of more extended duration – the practical effect of that in the case of Mr Bakewell, it means for the rest of his life.
FRENCH CJ: There are no words to impose a temporal limit, are there? It is just a question of whether a concept of review or appeal might pick up statutory provisions in the participating State which themselves incorporate a temporal limit, but 28(2) does not assume that, does it?
MR ABBOTT: It does not assume it, but we say that on a fair reading of section 28(2) it is talking about the normal processes of a court. It is perhaps of some significance that section 28(2)(a) of the South Australian Act speaks of “review by or appeal to a court”. The Northern Territory Act in section 23(1) does not talk in exactly the same terms. It says:
for the purpose of an appeal against or review of a conviction, finding of guilt, judgment or sentence made, imposed or fixed by a court.
So it does not attach to the word “review” the words “by a court”. It talks about a review of a sentence by a court. In our submission, in those circumstances, if section 28(2) of the South Australian Act applies, the application under section 19 is of no effect because what has happened with the fixing of the section 18 non‑parole period of 20 years has not been fixing the sentence by a court, recognising, of course, that the definition in the Northern Territory Act in section 3(3) refers to a sentence of imprisonment by – “For the purposes of this Act” a sentence of imprisonment by the operation of an Act shall be deemed to have been imposed by a court. But the crucial words in section 23(1)(a) of the Northern Territory Act:
for the purpose of an appeal against or review of a conviction, finding of guilt, judgment or sentence –
we say are solely designed to cover the situation that occurred perhaps in the case of Mickelberg where some years later a rehearing is sought because of fresh evidence or something of that nature and the court then has work to do, and that rehearing may indeed affect the sentence which has heretofore been transferred with the prisoner to South Australia. Adopting the analysis of your Honour Justice Hayne, in these circumstances under the South Australian Act under section 28(1), Mr Bakewell has arrived in South Australia with a 20‑year non‑parole period.
Under section 28(7) of the South Australian legislation, now only the South Australian Courts can fix, extend or reduce Mr Bakewell’s non‑parole period. This must be so because the words in section 28(7) in respect of a person subject to a translated sentence refer back to the definition of a “translated sentence” which in the dictionary is a translated sentence under section 27, and it is therefore a sentence pursuant to section 27 which is deemed to have been imposed on the person at the time of his arrival in South Australia.
By a combination of section 27 of the South Australian Act and section 28(7) of the South Australian Act it is our submission that the non‑parole period with which Mr Bakewell arrived, namely 20 years, can only be thereafter fixed, extended or reduced – the relevant words would be “extended or reduced” – by the appropriate South Australian Court.
Turning then to section 28 itself, it would seem to us tolerably clear that section 28(1) deems that the 20‑year non‑parole period, assuming it to have been a sentence for the purpose of the Northern Territory legislation, which I will come to in a minute, is deemed to have been fixed by the corresponding South Australian court as to the non‑parole period. That thereafter remains the non‑parole period. The words in section 28(2), in our submission, talk about where a translated sentence or a minimum term, which is part of a translated sentence, is deemed to have been fixed. It has to be thereafter – the only exception is “varied” – on a review to a court of the participating State where the sentence or minimum term was imposed or fixed.
In our submission, section 19 proceedings under the section 19(9) proceedings and section 19(1) proceedings under the Reform Act are not apt to be described as “review” by a court of the Northern Territory. It is an application for revocation, as we have said in our outline of submissions. It is no sort of review whatsoever; it is an application to revoke the existing non‑parole period.
HEYDON J: Is your argument that normally if you review something you weigh all the merits pointing in favour of an increase in effective sentence or a reduction in effective sentence or perhaps its maintenance, but section 19(6) and (7), for example, you can only go one way and that is up. That is not a review.
MR ABBOTT: Exactly.
HEYDON J: The mandate to start with a higher point is antithetical to the idea of a review, is that your argument?
MR ABBOTT: It is not appropriate to refer to it as a review.
HAYNE J: But there is also a presupposition within this branch of the submissions that when the whole of the part, Division 1 of Part 5, whether as amended by the 2008 Act or as previously speaks of a prisoner, that prisoner is sufficiently identified by section 17 as a prisoner who at the commencement of the 2003 version of the Act was serving a sentence of imprisonment for life for the crime of murder, regardless of whether at the time of application whether under the 2003 Act or under the 2003 Act as amended in 2008 that person was still serving a sentence and was a prisoner serving sentence under Northern Territory law.
Now, that is a separate branch of statutory construction separate from the effect of the Interstate Transfer Act, and I understand that the two necessarily intersect, but it is at least perhaps open to some question whether, when section 19 says that the court may revoke non‑parole period fixed in respect of a prisoner, it is referring to someone who does no more than meet the criterion specified in section 17 without regard to the status of that person at the time of application as a person serving sentence under the law of the Territory.
MR ABBOTT: We would say that has no application to a person who by force of the application of the South Australian Act has become a South Australian prisoner.
GUMMOW J: Well, who by force of 23 of the Northern Territory Act it has ceased to have effect. The question then is what is the relationship between 23 of the Northern Territory Transfer Act and section 17 of the Sentencing Act. In other words, does 17 of the Sentencing Act in some way impliedly amend 23 of the Transfer Act?
FRENCH CJ: You have to construe the Northern Territory statute by reference to the statutory context in the Northern Territory, not by reference to the law of South Australia.
MR ABBOTT: No, except that as Justice Gummow points out and Justice Hayne points out, the Northern Territory has in essence surrendered jurisdiction over the prisoner and allowed the prisoner to become a South Australian prisoner.
FRENCH CJ: That is a global sort of statement. We are trying to get back to the particular provisions, 17 and 23.
GUMMOW J: The bottom line may be that those drafting the 2008 Act, perhaps the 2004 Act – yes, the 2004 and the 2008 Act – did not have in mind the interstate transfer system.
KIEFEL J: In that regard, could it be relevant, as I have asked earlier, that section 18(a), where it includes a non‑parole period of 20 years and a prison sentence for the purposes of the 2003 Act, was not altered by the 2008 Act, so that the sentence and its non‑parole period did not alter, although it was subject to revocation by a court? That has the effect perhaps that it is not caught out by section 27(1)(a) of the South Australian Act. If theoretically 18(a) had been amended to say that the sentence includes a non‑parole period of 25 years, if the court so finds, it might have been a State sentence of imprisonment as defined in the interstate law and carried over into effect, but that was not the case.
MR ABBOTT: Yes, that was not the case. Could I take the Court to a matter we touch on in our written submissions about what is the definition of a sentence? Under the Northern Territory legislation, if the Court goes to the dictionary, which is section 3:
“Territory sentence of imprisonment” means a sentence of imprisonment for an offence against a law of the Territory, including a sentence of penal servitude, a sentence by which default imprisonment is ordered, an indeterminate sentence and a translated sentence –
The concept “indeterminate sentence” is also defined as:
a sentence of, or order or direction for, imprisonment or detention––
(a) for life –
and it is only in section 23 that this concept of a “Territory sentence of imprisonment” appears in relevant terms. The point we make, of course, is that the Territory sentence of imprisonment does not include a non‑parole period. It is defined as an indeterminate sentence. An indeterminate sentence is merely defined as a detention for life.
HEYDON J: Is not a non‑parole period part of a sentence of imprisonment?
MR ABBOTT: It may be, but the issue is whether the legislators directed their attention to the fact that a non‑parole period might become part of an indeterminate sentence. It certainly was not at the time of the passage of this Act. The Prisoners (Interstate Transfer) Act was originally passed in 1983 at a time when there was no non‑parole period fixed. So one would have to argue that the passage of section 18 of the Reform Act impliedly amended the provisions of the Prisoners (Interstate Transfer) Act (NT).
HAYNE J: Why? Why would one not simply stop with the observation of the South Australian Act, regardless of the State or Territory law, that once Mr Bakewell hit South Australia, 27(1) was engaged in respect of his life term and 28(1) was engaged in respect of the then extant fixed 20‑year non‑parole period? Why do we need to pause to see what was happening in Territory law at that stage?
MR ABBOTT: Only this, that the power under which my learned friend, the Solicitor‑General, relies are 23(1)(a) of the Northern Territory Act is only a power referable to a Territory sentence of imprisonment and if a Territory sentence of imprisonment does not include the non‑parole period ‑ ‑ ‑
HAYNE J: I see the argument, yes.
MR ABBOTT: Yes. I have dealt with the word “review” and perhaps I could just complete my submission in relation to section 23(1)(a) of the Northern Territory Act by - although noting that the word “review” is not as in the South Australian Act accompanied by the words “by a court”, in our submission, a fair reading of the Northern Territory Act must mean that it is only reviews by a court and as I have said, the section 19 application is not, in our submission, apt to be characterised as a review by the court, in part for the reasons advanced by Justice Heydon.
The third submission I wish to make is that in relation to the South Australian Act, which we say applies, a fair reading of the South Australian Act would then be that there is no review by a court of the Northern Territory so that section 28(2) of the South Australian Act – the exception in section 28(2) of the South Australian Act has no application and that the only subsection of section 28 that has any further application is section 28(7) or possibly section 28(4). Section 28(4) of the South Australian Act says:
Where a translated sentence is an indeterminate sentence requiring that the person who is the subject of the sentence be detained during the pleasure of Her Majesty or during the pleasure of the Governor of the participating State in which the sentence was imposed –
as is the case with Bakewell –
the person must be detained until the Supreme Court –
that must be the Supreme Court of South Australia –
discharges the sentence, but may be released earlier on licence subject to and in accordance with the Criminal Law (Sentencing) Act 1988, as if the sentence were a sentence of indeterminate duration imposed under that Act.
BELL J: Surely Mr Bakewell was not sentenced to an indeterminate sentence during the pleasure of Her Majesty or the pleasure of the Governor of the participating State, in this case the Administrator of the Northern Territory?
MR ABBOTT: Yes, he was, your Honour.
FRENCH CJ: He was given a life sentence.
BELL J: He was given a life sentence.
FRENCH CJ: This is the key, as they used to call it.
MR ABBOTT: Yes.
FRENCH CJ: It is a different kind of disposition.
BELL J: This is a different sentencing disposition.
MR ABBOTT: If it be a different sentencing disposition it has nothing to do with this – no, I will not proceed further. Those are the submissions we wish to make.
GUMMOW J: Does it come to this, Mr Abbott? Looking at the orders made by the court below, at pages 208 and 209, the Full Court was dealing with this on the questions. Does your position come to this? First, section 17, there should be an answer to the effect that section 17 and therefore Division 1, Part 5 of the Sentencing Act does not apply to your client?
MR ABBOTT: Yes, your Honour.
GUMMOW J: You see question 4? That is talking about section 19. I think that really section 17 is the starting point for the conclusion about 19. Then do you also have to independently say that section 23 of the Transfer Act of the Territory did apply to your client at the time of the commencement of the 2008 amendment, and that it did apply because the exclusion from the application in paragraph (a) does not operate?
MR ABBOTT: Yes.
GUMMOW J: A result would be the application was incompetent?
MR ABBOTT: Yes.
GUMMOW J: Do you need to revise your grounds of appeal in any way?
MR ABBOTT: We would, your Honour, yes.
HAYNE J: Grounds of appeal and relief sought, I would have thought, to provide for a speaking answer.
MR ABBOTT: Yes. If the Court was with us in that, we would seek leave to have a short adjournment to bring forward to this Court revised grounds. If the Court pleases.
FRENCH CJ: Yes, thank you, Mr Abbott. Mr Solicitor for the Northern Territory, do you wish to reply.
MR GRANT: No, your Honour.
MR MEADOWS: Excuse me, your Honour. I rise with some trepidation, because I would not like the Court to think that section 28(7) is replicated in other jurisdictions. It is dealt with differently – the question of remissions – in other jurisdictions, so to the extent that the Court is being influenced by the provisions of section 28(7), it would be important to note that that does not apply – certainly in Western Australia where the issue of remissions is dealt with quite differently in section 26. So subsection (6) of the Prisoners (Interstate Transfer) Act 1983 ‑ ‑ ‑
HEYDON J: Does section 78A of the Judiciary Act give you a standing to say these things?
MR MEADOWS: No, it does not, your Honour, that is why I rose with trepidation, and I am certainly mindful of the limitations that were in the Court’s letter, but I just would not like the Court to think that this is replicated in other jurisdictions.
FRENCH CJ: All right, thank you, Mr Solicitor. The Court will adjourn briefly to consider what course it takes on this matter.
AT 11.57AM SHORT ADJOURNMENT
UPON RESUMING AT 12.06 PM:
FRENCH CJ: The Court has decided that the appellant should file in Court at 2.15 pm this afternoon an amended notice of appeal which encompasses the questions agitated today about the construction and application of the Prisoners (Interstate Transfer) Act (NT) and (SA) and the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) and the Sentencing (Crime of Murder) and Parole Reform Amendment Act 2008 (NT).
The Court will otherwise adjourn until 2.15 pm this afternoon.
AT 12.07 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
FRENCH CJ: Yes, Mr Abbott.
MR ABBOTT: If the Court pleases, I seek leave to file an amended notice of appeal in terms of the document which I believe is before your Honours and to the extent necessary, I seek an abridgement of time to enable the Court to deal with this matter today.
GUMMOW J: Well, you would need to keep your previous grounds alive, would you not, insofar as there is a prospect that these grounds might not succeed?
MR ABBOTT: Yes, your Honour, yes, I would.
FRENCH CJ: So this is an additional ground and additional relief?
MR ABBOTT: An additional ground, yes.
FRENCH CJ: Yes, thank you. Mr Solicitor for the Northern Territory.
MR GRANT: Yes. We do not oppose the receipt of the document, your Honour.
FRENCH CJ: You do not oppose the amendment?
MR GRANT: No.
FRENCH CJ: All right. Thank you.
HAYNE J: Mr Abbott, I see that you are seeking declarations that would, I would have thought, have been a possible point of view that the relief sought would be setting aside the orders of the Court of Appeal answering the questions in a particular way and substituting for the answers given a speaking answer to the effect of one or more of the declarations. But do I understand that form of relief to be encompassed in the form of relief you seek by your amended appeal?
MR ABBOTT: Yes, the relief sought is prepared on the basis that this man is no longer a prisoner to whom the laws of the Northern Territory are subject to.
HAYNE J: Yes, I understand.
GUMMOW J: Well, looking at page 208, question 4, which was referred to before the adjournment, the question is “Does s 19 of the Act (as amended) apply to Bakewell?” A speaking answer would be that Part 5 Division 1 did not apply to him after 15 April 2005.
MR ABBOTT: Yes, that would be the speaking answer.
FRENCH CJ: Do you seek that relief to be encompassed in the amended ‑ ‑ ‑
MR ABBOTT: Yes, I would, your Honour. I would seek that relief to be encompassed in the appeal to the extent that we need speaking answers to the questions referred to the Full Court, I would seek leave then to further ‑ ‑ ‑
FRENCH CJ: Perhaps you should file a further amended notice of appeal to take account of that.
MR ABBOTT: Yes, your Honour.
FRENCH CJ: Yes, all right. Can you file that later on this afternoon?
MR ABBOTT: Yes, your Honour.
FRENCH CJ: Yes, all right. The Court will now adjourn to consider the matter and will re‑list it at a future date either for judgment or for further argument and the parties will be advised. The Court will now adjourn until 9.15 tomorrow.
AT 2.22 PM THE MATTER WAS ADJOURNED
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