Boucher v The Queen

[1994] HCATrans 375

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M25 of 1994

B e t w e e n -

CHRISTOPHER RONALD BOUCHER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 1994, AT 10.26 AM

Copyright in the High Court of Australia

Boucher 1 10/6/94

MR M.S. WEINBERG, QC: If the Court pleases, together with	MR D. GRACE, I appear on behalf of the applicant.
(instructed by Jonathan Kemp & Associates)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MS K.E. JUDD, for the Crown.

(instructed by the Director of Public Prosecutions

(Victoria)

MASON CJ:  Mr Weinberg.

MR WEINBERG: If the Court pleases. One is tempted, at the

commencement of this application, to utter these

words: "where the very situation in which special

leave is granted is in respect of a case where

there are arguments for and against, and it is not

easy to see the answer". Those were the words of

Your Honour Justice Dawson five minutes ago. It is

our submission that that is this case.

MASON CJ: Yes, but I have always understood that what a

judge says during the course of argument in a case

is not something that you can rely on.

MR WEINBERG:  Your Honour, I will start again, if the Court

pleases.

MASON CJ:  Yes. I was going to say I hoped that you had a

stronger ground in support of this application,

Mr Weinberg.

MR WEINBERG:  If the Court pleases, we submit we do. The

reasons why special leave should be granted, in our

submission, is as follows: firstly, the matter is

one of general importance. The fact of the matter

is that there are hundreds, if not thousands, of

persons who are yet to be sentenced or - - -

GAUDRON J: For this offence?
MR WEINBERG:	No, Your Honour, it is nothing to do with

this offence; for any offence in the State of

Victoria, which may amount to a term of

imprisonment. We think we understand the irony of

Your Honour's point in relation to incitement to

murder, the Court of Criminal Appeal having made a

mess of it on two occasions. We submit this is the

third time, only this time it is a Full Bench of

five which, in our respectful submission, has

completely and erroneously dealt with a broader

question of sentencing principle than that which

concerned Dimozantos.

The fact is this is a test case. The fact is

that - - -

Boucher 2 10/6/94

GAUDRON J: But is it? You say that but you come back to

this particular offence where there was a

legislative history affecting the sentence that has

a particular application, does it not?

MR WEINBERG:  No, Your Honour, absolutely not. The question

of the construction of section 10, if we are right,

the maximum penalty that could have been - - -

GAUDRON J:  It is not so much the question of construction,

it is whether it would have any application in

circumstances where the sentence had been changed

in such a dramatic way as it had been in this case.

MR WEINBERG:  No, Your Honour. The Full Bench says that

section 10 has no application when the sentence is

changed for any offence no matter how much; whether

it is increased by the most marginal factor or

reduced by the most marginal factor.

GAUDRON J:	I am aware of what it said generally but
MR WEINBERG:	But, Your Honour, that is the ratio of the

case. That is what is going to be - - -

GAUDRON J: But one has to look at the case that is

presently before the Court.

MR WEINBERG:  Your Honour, the case before the Court is a

case of a sentence that is unlawful, in our

submission. The maximum sentence, it is common

ground, was five years. If we are right,

then -

GAUDRON J: But would section 10 have had any application at

all in this case?

MR WEINBERG:  Yes, it did, in our respectful submission. It

did, because the maximum sentence was five years.

The reason why the Full Bench said that section 10

had no application was because the maximum sentence

for incitement to murder had been reduced from

15 years to five. It does not matter, Your Honour,

whether we are dealing with incitement to murder or

it is - mentioned in the Sentencing Act,

any other offence in the entire lexicon of the think

which has had its sentence increased or reduced,

including incitement to murder, which has had its

sentence reduced, leads to an additional

50 per cent, effectively, having to be served as a

result of the decision of this Full Bench; not just

the indictable offence but any summary offence

which has had its penalty changed and any offence

in which the penalty has been altered in terms of

an increased fine, non-payment of which leads to a

Boucher 3 10/6/94

term of imprisonment. In other words, section 10

has almost been read out of existence.

MASON CJ: But tell me, on your construction of section 10,

what was the sentence that should have been imposed

upon a conviction for incitement to murder?

MR WEINBERG:  The lawful maximum was three years and four

months.

MASON CJ: That strikes me as ludicrous.

MR WEINBERG:  It struck Justice O'Bryan as ludicrous as

well, and His Honour gave no reasons at all but

His Honour said, "I reject the argument. This is

the worst case imaginable. I am appalled at the fact that the maximum penalty is only five years

and I impose a sentence of five years." Now,

Your Honour, Mr Boucher does not matter one little

bit, in one sense, so far as this application is

concerned. He is a vehicle that has come here in a

situation in which, although he has a sentence of,

effectively, four years to serve, the best we can

realistically hope to expect is a reduction of some

eight months or so for him. But he has been

sentenced, we submit, unlawfully beyond the lawful

term that is open.

The reason that Your Honour says it is

ludicrous is because Your Honour takes the view,

whether rightly or wrongly, that the five-year

maximum was too low. That has nothing to do, with

respect, to the question of principle that is at

stake in this particular case. For two years from

the time the Sentencing Act was passed in April

1992, every magistrate, every County Court judge,

every Supreme Court judge and every Court of

Criminal Appeal read section 10 in the way that we

say it should be read. It was not until

Mr Justice O'Bryan, in this case, provoked, no

doubt, by a feeling that five years was too low for

incitement to murder, declined to grant the

one-third reduction, and simply said, without

reasons, "You are going to serve five years with a
minimum of four years", that this matter arose, and

it was not until then that the Full Bench looked

for an explanation as to how one could come to that

conclusion.

GAUDRON J: But does your argument not mean that the maximum

term can never be imposed?

MR WEINBERG: For five years, Your Honour, from the time of

1992 - - -

GAUDRON J: For any offence?

Boucher 4 10/6/94

MR WEINBERG:  Your Honour, it does not mean that the maximum

term can never be imposed. What it means: that

for a period of five years, at the very least, from

1992, one-third must be taken off the maximum term

to have regard to the fact that remissions have

been abolished, and the reason for that,

Your Honour, is because the new statutory maxima,

which were introduced in 1992, as we have made

clear in our submissions - and it is beyond

argument - those new statutory maxima were fixed,

not with any reference to the fact that remissions

were to be abolished or anything of that kind.

This was the fundamental misconception that

Parliament made, that the Shadow Attorney-General

made - what they did, with respect, according to

the Full Bench, was to completely misunderstand the

basis upon which the new statutory maxima contained

in the Sentencing Act were being introduced.

They assumed that there would be an element of

double counting. They assumed, in effect, that

when you create a new statutory maximum pursuant to

the Sentencing Act, it would give double weight to

that reduced maximum if it was reduced by giving an

additional discount of one-third for the loss of

remissions which were abolished in this Act. That

just was never so. It is common ground. The

Full Bench said it was never so. The Full Bench

said that those who had drafted section 10 in its

present form acted under a total and complete

misconception.

What had happened was that the new statutory

maxima were fixed simply to accord with the general

maxima that had truly been passed over the

preceding six or eight years. What happened was,

we had ridiculous maxima sentences in Victoria:

25 years for armed robbery. No one ever got more

than 14 years. So, the Costigan Committee, the
task force said, "We will set a new maximum of

regard at all to the fact that remissions might or	14 years, but when we do that we will not have any
might not be abolished. It will be 14 years,
assuming therefore that remissions will still
operate."

What happened, regrettably, in the Parliament

was that the Shadow Attorney-General in insisting

upon this last minute amendment in the Legislative

Council - and it was drafted on the run in the last

minute - believed that the reduction in the

statutory maxima had already taken account of the

abolition of remissions. They never had. The true

position is that on 25-year sentences the average

sentence imposed for a prisoner for an offence of

robbery was five or seven years in the State of

Victoria. These new statutory maxima were simply

Boucher 10/6/94

designed to bring the ceiling down to something

realistic but to retain the one-third off.

GAUDRON J: But Mr Weinberg, if that was what was intended,

why have subsections (1) and (2) and the opening
words of subsection (3)? Why not simply say, "A

court must (a)", in subsection (3)?

MR WEINBERG:  Your Honour, that is what clause 11, of

course, did, until the very last second when

section 10 was introduced to change it, and

section 10 was introduced to change it because the

Opposition, which had a majority in the Upper have clause 11 there will be double counting."

GAUDRON J:	Do not worry about the voting patterns or the reasons for the voting pattern.
MR WEINBERG:	We have to, with respect, Your Honour, because

that is what influenced the Full Bench. It was

only because the Full Bench read that contribution

to the debate that they gave this quite unnatural

meaning to section 10.

GAUDRON J: That may be so but what effect, on your

argument, is to be given to subsections (1) and

(2)? Nothing?

MR WEINBERG:  No, Your Honour.

GAUDRON J: Nothing until the maximum term available for any

particular offence has expired, as it were.

MR WEINBERG:  No, Your Honour. In our respectful

submission, that misconceives section 10. What we

say section 10 does and was intended to do and

should be regarded as doing is to compensate for

the abolition of remissions to ensure that

prisoners serve no longer, having regard to the

abolition of remissions, than they would have

served had they been dealt with or sentenced

previously. One thing is perfectly clear - - -

GAUDRON J: Exactly, "previously". Now, if this man had

been sentenced previously, what was the maximum

sentence he was exposed to?

MR WEINBERG: Fifteen years.

GAUDRON J: Yes, and it was unlikely, was it not, that he

was getting more time in custody than he would have

got if he had been sentenced previously?

MR WEINBERG: But, Your Honour, you cannot, with respect,

read this provision as operating differently in

respect of this man than any other man. You cannot

Boucher 6 10/6/94

say it operates in respect of one case in one

way -

GAUDRON J: Is that not the point? Its application has got

to be considered in the light of the circumstances

of each particular case?

MR WEINBERG: Absolutely not, with respect, Your Honour;

absolutely not. The section, in our respectful

submission, must operate consistently in respect of

all persons. It does not matter whether the

maximum sentence was reduced -

GAUDRON J:  It may operate consistently in respect of all

persons. That is not to say that it applies to all

persons.

MR WEINBERG:  It must apply equally to all persons.

GAUDRON J: The question of its application is a question in

each particular case.

MR WEINBERG:  No, Your Honour, with great respect, that does

violence to the language of section 10. Section 10
was intended to operate on the plainest view, in
our respectful submission, giving the words their

ordinary and natural meaning, irrespective of

whether Parliament had reduced a sentence from

20 years to five years or 20 years to 19 years or increased a sentence from 20 years to 21 years or 25 years, it did not matter, in our respectful

submission. There was to be compensation for the

abolition of remissions. That compensation was to

operate irrespective of whether the maximum

sentence was increased, irrespective of whether it

was reduced.

Your Honours, we find it impossible to see how a manifestation of legislative intent that the

maximum sentence should be reduced from, let us

say, 10 years to eight years, can produce a result

where one is worse off being sentenced under the

eight-year new regime than one was under the

10-year regime because under the new regime the

effective maximum is eight full years; under the

old regime it was six and two-third years. That is

what the Full Bench has produced. The Full Bench

has produced a result where the penalty in Victoria for attempted theft is greater than the penalty for

theft.

There are hundreds of anomalies, hundreds of

them, which are produced as a result of this
reading. There is no anomaly produced if the
section is read in exactly the way it was read by

all the Judges of this Court until this Full Bench

turned the section around and gave it a meaning

Boucher 10/6/94

which it just cannot, with respect, bear. What the offence in similar circumstances" and the end of

section 10(1) and say those words "similar

circumstances" must include the maximum penalty.

The Full Bench agreed that was an inapt way of

reading them but said it should be read that way to
give effect to Parliament's concerns about double
counting. There never was double counting.

We are distressed to see that our learned friends still stay, in their submissions, that one

of the reasons for this section is to deal with

double counting. I will say it again: the

Costigan Report made it abundantly plain that the

new maxima did not contemplate double counting.

The Full Bench accepted that the double counting

argument was totally specious. There is no double

counting in respect of this.

The effect of the Full Bench's decisions is to

increase by 50 per cent the sentence that every

person sentenced in the State of Victoria, who

happens to have the misfortune to be sentenced

under a regime where there has been any adjustment

of the maximum, marginally upwards or marginally

downwards, will face. It produces hundreds and

hundreds of anomalies. It produces a situation, in

our submission, a strange situation. The Director,

in his submissions, says the meaning of the section

is clear. That we find an absolutely remarkable

proposition. The meaning of this section is clear.

The Director himself, in one of the cases,

Stanbrook, which went diametrically opposed to this

case, conceded that the interpretation for which we

contend was correct. Well, suddenly, it has become

clear, in the Director's submissions, that his

argument is correct, that the argument adopted by

the Full Bench is the only possible argument.

MASON CJ:  I would have thought, Mr Weinberg, the only

solution to these difficulties is for legislation.

Now, twice already this legislation has come to the

High Court.	You want us to take it aboard for a
third time.

MR WEINBERG:  No, Your Honour, we do not. Section 10 has

never been before this Court. This is not about

incitement to murder. That is the vehicle, but it
is not about incitement to murder. It does not
matter - it would not matter if this man had been

sentenced for robbery, obtaining by deception,

prostitution or anything, it has nothing to do with

incitement to murder.

Boucher 10/6/94

GAUDRON J: But is not that the vice of your argument? You

say it has nothing to do with the particular

offence. You never have regard to the particular

offence. True, it is, that that is also, in one

respect, what the Court of Criminal Appeal has

held.

MR WEINBERG:	It is the ratio of the case, Your Honour.
GAUDRON J: But the question I am putting to you is why	do

you not have regard to the particular offence?	Why
do you not look to what the previous situation would have been - - -

MR WEINBERG: Because the words of the statute,

Your Honour - - -

GAUDRON J:  - - - and ask, first of all, "Will he spend more

time in custody?"

MR WEINBERG:  Yes, and the answer is yes, he will, plainly,

because the Sentencing Act reduced the penalty from

15 years to five years. It did not increase it,

Your Honour, it reduced it.

GAUDRON J:  Because you and the Court of Criminal Appeal

treat "similar circumstances" as involving the

exact sentence. I would have thought that that was

what was very much open to argument. At least one

of the factors to be taken into account is what the

sentence would have been under the old regime.

MR WEINBERG:  No, with respect, Your Honour, that cannot be

right because then what Your Honour is saying is

that one reads the words of the statute, "would

result in the offender spending more time in

custody", those words which are the key words of

the statute, and one asks oneself questions like
the ones that Your Honour is asking, the ones the

learned Chief Justice asked me, "Well, that is a

ludicrous sentence". One says it is not fair in

some way that this fellow should get less than five
years. But if the maximum sentence had been 10
years, Your Honour might not have asked that

question. What earthly difference does that make

to the question of whether he would spend more time

in custody only because of the abolition of

remissions?

The sentence has been reduced. If it were

reduced by one day, he spends 50 per	cent more time
in custody on this construction. It	is not a
construction which Parliament - - -

GAUDRON J: Fifty per cent more time than what? Than if

your construction were correct?

Boucher 10/6/94

MR WEINBERG:  No, Your Honour. If the original sentence had

been 10 years and one day, the original maximum,

and Parliament reduced it to 10 years, he spends 50

per cent more time in custody by virtue of that

reduction of one day. That is what the Full Bench
has decided in this case. That is what it has

decided, Your Honour. That is what is going to

happen.	Your Honour asks, "Why doesn't Parliament
fix it up?" Two answers to that:	this Court

should fix it up if the Full Court is wrong and,

secondly - - -

MASON CJ:  Now, I think you might do a little better if you

preface some of your comments with the word

"submit".

MR WEINBERG:	I am sorry, Your Honour.
MASON CJ:	I think your enthusiasm overtakes you at times.
MR WEINBERG:	Your Honour, I just see the light is on and I

do apologize. I am wasting my own time,

Your Honour, I do - - -

MASON CJ: Yes. Well, that is accepted.

MR WEINBERG:  Yes, Your Honour. I submit, Your Honour, with

great respect, that in relation to this

interpretation of section 10 which we are dealing

with, the Full Bench itself accepted that it was
adopting an artificial interpretation. It took the

words "similar offence" and "similar circumstances" and treated those words as though they included the

maximum sentence that had previously applied.

Your Honour, the result of this particular

application, in our submission, is of importance -
if this is not the right vehicle, we do not know

what would be the right vehicle, with respect,

because it is the same point.	It is exactly the
hereafter dealt with.
same point in relation to any prisoner who is
We cannot rely, with respect, on Parliament to

cure the problem because there are a whole range of

people who are going to be dealt with in the

interim before Parliament gets around to doing

anything about it if, indeed, Parliament decides to

do anything about it. Parliament did nothing about

the earlier situation for two years. It was

perfectly content with the position that had always

applied until the Full Bench overturned the

construction of section 10.

Might we conclude our submissions in this way:

the very last words spoken about the construction

of section 10 in the debate by the Minister for

Boucher 10 10/6/94

Health - and these appear at page 2413 of Hansard -

were these:

The consideration of clause 11 while the Bill

has been between the Houses has been a long

and tortuous process. The government will

accept the amendment that is now before the

Committee and trusts that this set of words

will achieve what the government was seeking

to achieve -

remember what the government was seeking to

achieve, with respect. It was seeking to achieve

exactly what we say section 10 means, so the

government did not see this new provision as

changing the position at all -

although we still claim that our original

clause 11 would have been adequate. We accept

the amendment and hope the courts will be able

to understand and interpret our intent.

Now, that was the last words said about this

particular section. For two years the courts did

understand and accept and construe this section,

giving it its ordinary and natural meaning, and now

this Full Bench, in our respectful submission, has

given these words in this section a meaning that

they cannot reasonably bear, a meaning which leads
to results which, we submit, the Court itself

accepted would be anomolous. We say that it is not

sufficient, with respect, to leave the matter to

the Parliament, at some point, if it were mlnded to

do so, to rectify the problem.

We have people in the system who are awaiting the outcome of this case who will be affected by a 50 per cent increase in the penalty that they will

have to serve if this judgment stands and it is the

ratio of this case, and Mr Boucher himself, in our

respectful submission - whatever one thinks about

the maximum that then existed, which was five years

and is now life - has been sentenced unlawfully to

a term beyond the lawful maximum, in our respectful

submission. If the Court pleases. Again, I

apologize for the intemperate language.

MASON CJ: Your apology is accepted, Mr Weinberg.

MR WEINBERG: If the Court pleases.

MASON CJ: The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 10.48 AM SHORT ADJOURNMENT

Boucher	11	10/6/94
UPON RESUMING AT 10.52 AM:

MASON CJ:  The Court need not trouble you, Mr Bongiorno.

The Court is not persuaded that in the

particular circumstances of this case the sentence

imposed was erroneous. The application is

therefore refused.

AT 10.52 AM THE MATTER WAS ADJOURNED SINE DIE

Boucher 12 10/6/94