Bennett v The Queen

[1986] HCA 77

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane, Dawson JJ.

DAVID MARK BENNETT v. THE QUEEN

3 December 1986

Decisions

GIBBS C.J., WILSON, BRENNAN AND DAWSON JJ.: The argument on this application for special leave to appeal has revealed apparent deficiencies in the law of the State of New South Wales.

2. On 10 August 1984 the applicant, who had pleaded guilty to a charge of armed robbery, came before his Honour Judge Ward in the District Court for sentence. The applicant had, on 1 March 1984, been convicted of an offence in the Australian Capital Territory and had been sentenced to a term of imprisonment for five years with a non-parole period of twenty months. Judge Ward took that circumstance into account in imposing sentence for the offence of armed robbery. He sentenced the applicant to eight years' penal servitude to be served cumulatively on any sentence presently being served by the applicant and specified a non-parole period of six years to commence from the day of sentence.

3. The applicant appealed to the Court of Criminal Appeal which held that a New South Wales judge has no power to make a sentence which he imposes cumulative upon a sentence imposed by a court outside New South Wales. The Court of Criminal Appeal allowed the appeal and quashed the sentence and non-parole period and in lieu thereof sentenced the applicant to penal servitude for eleven years to commence from 10 August 1984 and specified a non-parole period of six years to commence from 10 August 1984. Although the non-parole period specified by Judge Ward was quashed as a matter of form, it was in substance confirmed. The effect of the actual sentence was, according to Street C.J. in the Court of Criminal Appeal, to prolong the applicant's custody for six and a half years beyond the term which he was sentenced to serve by the court in the Australian Capital Territory, and assuming that the sentence imposed in the Australian Capital Territory was not quashed or rendered inoperative by pardon - contingencies not suggested as likely - that sentence was lighter in effect than that which had been imposed by Judge Ward.

4. The order which was made by the Court of Criminal Appeal was clearly within the power conferred on it by s.6(3) of the Criminal Appeal Act 1912 (N.S.W.), as amended. It was not argued that the Court of Criminal Appeal was wrong in concluding that Judge Ward had no power to make the sentence cumulative upon a sentence imposed in the Australian Capital Territory. This application is, therefore, one for leave to appeal against the severity of the sentence of eleven years' penal servitude imposed by the Court of Criminal Appeal. Speaking generally, such an application would not be granted in a case where there has been no want or excess of jurisdiction unless the case involved some question of law or principle of general importance or there has been a gross violation of the principles which ought to govern discretion in imposing sentence: Lowe v. The Queen (1984) 154 CLR 606, at pp 608-609. We consider that none of these criteria is satisfied in the present case.

5. It was suggested that the sentence of eleven years' penal servitude was a greater one than was warranted by the circumstances of the case. However, one matter which Judge Ward endeavoured to take into account, and which the Court of Criminal Appeal did take into account, was that the applicant was already serving a sentence, and that a sentence of penal servitude which commenced on 10 August 1984 would be effectively reduced by the term served under the earlier sentence. That was a matter rightly to be considered, but one that can usually, and best, be given weight by making the sentence cumulative. The only practical disadvantage which the applicant suffers from the judgment of the Court of Criminal Appeal is that if he offends again, and his prior convictions come to be considered, he will be seen to have been sentenced to a term of eleven years' penal servitude for an offence which in other circumstances might have warranted only eight years' penal servitude. However, the reason for the increased sentence could easily be pointed out to the court and indeed ought to be pointed out by any counsel for the Crown who relies on the prior convictions. We would refuse the application for special leave to appeal.

DEANE J.: I consider it to be a fundamental principle of the administration of criminal justice in this country that a sentence of imprisonment imposed upon a convicted person should not exceed the sentence which is appropriate and adequate to reflect the community's assessment of the gravity of the crime of which he stands convicted.

2. In the context of the comparative ages of the applicant (17) and of Bronson (35), who was the apparent ring leader and was sentenced to a term of imprisonment of 8 years, it appears to me to be clear that the New South Wales Court of Criminal Appeal did not come to the conclusion that a term of imprisonment of 11 years was the appropriate term of imprisonment to reflect the severity of the applicant's crime. To the contrary, the judgment of Street C.J. makes clear that the sentence of 11 years was imposed as a result of a conclusion that the applicant should be sentenced to serve six and one half years imprisonment cumulative upon the term of imprisonment which he was currently serving under the sentence imposed by the Australian Capital Territory Supreme Court in circumstances where the Parliament of New South Wales had not made adequate provision to enable a cumulative sentence to be imposed by a New South Wales court in the special case where the person before it is serving a sentence imposed in another jurisdiction but which is being served in that State.

3. The result is that the applicant has been sentenced to a term of imprisonment which exceeds the term which is appropriate to reflect the gravity of the crime of which he has been convicted. That is a situation which, in my view, should not be allowed to stand. If, for example, the applicant were tomorrow to be pardoned in respect of the A.C.T. conviction or the sentence imposed in respect of that conviction were to be quashed, the sentence of 11 years would remain as the sentence which he was actually required to serve in respect of the New South Wales offence. Perhaps more important from the practical point of view, the applicant will, if the sentence is allowed to stand, remain for the rest of his life a person who appears to have been found guilty of a crime for which the appropriate sentence is 11 years in a situation where that is not the appropriate sentence for the crime of which he stands convicted.

4. It was submitted by Mr. Blanch of Queen's Counsel that considerations of justice militate in favour of allowing the sentence imposed by the Court of Criminal Appeal to stand for the reason that that sentence would more effectively achieve the result which the trial judge sought to achieve by the imposition of a cumulative sentence of a lesser period of imprisonment. I see no merit whatsoever in that submission. To the contrary, it appears to me to be quite contrary to the requirements of justice to impose a sentence upon a convicted person which exceeds the sentence of imprisonment which is appropriate to reflect the gravity of his crime in order to overcome the effects of a deficiency in the legislation of the State of New South Wales to make provision for the imposition of a cumulative sentence in a case such as the present.

5. In my view, special leave to appeal should be allowed so that the sentence imposed by the Court of Criminal Appeal can be reduced to a term of imprisonment which is appropriate to reflect the gravity of the crime of which the applicant stands convicted.

Orders

Special leave to appeal refused.