Devine v The Queen

[1967] HCA 35

HIGH COURT OF AUSTRALIA

McTiernan A.C.J., Kitto, Taylor, Windeyer and Owen JJ.

DEVINE v. THE QUEEN

(1967) 119 CLR 506

17 October 1967

Criminal Law

Criminal Law—Conviction—Conditional release of offenders—Common law powers—Statutory power—Powers of court on breach of condition of recognizance—Procedure—Release on condition of entering into recognizance upon condition of being of good behaviour and appearing for sentence if called upon—Conviction for subsequent offence—Crimes Act 1914-1960 (Cth)8 s. 20.*

Decisions

October 17.
The following written reasons for judgment were delivered:-
McTIERNAN A.C.J. The appellant, P. E. Devine, was sentenced in the Supreme Court at Canberra in April 1967 to imprisonment for three years. He was granted leave to appeal against the sentence in August 1967. The argument on the application for leave was treated as the argument for purposes of the appeal. The Court granted leave to appeal and ordered that Devine, who was then in gaol, be released. The publication of the reasons of the Court was deferred. (at p508)

2. In May 1965 Devine was charged in the Supreme Court at Canberra with the crime of carnally knowing a girl below the age of consent - a crime for which the offender is liable to ten years penal servitude. Devine pleaded guilty to the indictment and was convicted of the crime. (at p508)

3. The information before the judge which he could rightly consider in determining the quantum of punishment showed that the crime was committed in May 1964 ; that the girl's age was fourteen years and Devine was a few years older ; that a love affair had gone on between them for some time before he seduced her ; that a baby was born of which he acknowledged he was the father and he was willing to marry the girl in due course. There was also evidence of previous convictions of Devine, none of which was for any sexual offence, and his general character, his education, employment and family circumstances. His Honour considered it appropriate to deal with Devine under s. 20 of the Crimes Act 1914-1960 (Cth). The provisions of this section were available by reason of the Interpretation Ordinance. The result was that the judge did not pass a sentence of imprisonment. Instead he ordered that Devine be released on condition that he engaged by a recognizance to be of good behaviour for a period of three years and to appear for sentence when called on to do so. The judge dispensed him from finding sureties. He ordered that conditions be inserted in the recognizance designed to prevent Devine from meeting the girl except at his mother's house on occasions when his mother would be there and to keep him under police supervision. Devine immediately after conviction entered into a recognizance drawn in accordance with the judge's directions and was thereupon released from custody. (at p508)

4. The proceedings in which the sentence of three years imprisonment was imposed on Devine arose out of an alleged failure, in November 1966, by him to observe the condition of his release to be of good behaviour. The form of the proceedings was not a presentment on a charge under s. 20, sub-s. (2), for failing to comply with that condition. The proceedings were commenced by a notice issued out of the Supreme Court in March 1967, which was served on Devine, stating that he was required to appear on the hearing of an application by the Crown for an order that the recognizance be forfeited and for any other order which the Court may think fit to make. The notice contained a resume of the conviction in May 1965, and the conditions of the recognizance, except however the condition binding Devine to appear for sentence when summoned. It appears from the notice that what moved the Crown to issue it was that in November 1966 Devine committed traffic offences for which he was sentenced to imprisonment for three months and disqualified from driving a motor vehicle for two years. The notice contains an allegation that these offences constituted a breach of the condition of the recognizance binding Devine to be of good behaviour. (at p509)

5. In August 1966 the Crown brought a similar class of proceedings in respect of the recognizance based on an allegation that Devine was seen in the girl's company on an occasion to which permission under the recognizance to see her did not apply and the form of the application to the Court was similar to that mentioned above. These proceedings were heard before Kerr J. His Honour declined to make any order other than to continue the recognizance for the remainder of the original period of three years. The proceedings commenced in March 1967 and were heard the following April, before Dunphy J., who originally put Devine under the recognizance as a condition of his release after conviction. In his opening, counsel for the Crown did not go beyond the terms of the notice in stating what order was sought by the Crown. The recognizance and certificates of convictions for traffic offences were produced to the Court. The certificates showed that the traffic offences were all committed on the same day in November 1966. Evidence was given by police witnesses that Devine was recently seen in the company of a man with a criminal record and that he was with another man with a criminal record when the traffic offences were committed. The Crown as part of its case referred to the circumstances of the crime and the mitigating circumstances shown by the evidence and statements which were before the Court at the trial. Devine neither gave nor called evidence. Although the notice primarily sought an order to estreat the recognizance and did not define what other order was sought and the evidence was directed to the issue whether there had been a breach of the condition to be of good behaviour, the Court made no express finding on that issue, but concerned itself with the question of what sentence should be imposed on Devine for the offence of carnal knowledge. His Honour spoke of the punishment he was about to impose as a "penalty", a term obviously derived from s. 20, sub-s. (2). It seems to me that because of the terms of the notice there may have been some confusion on the question whether Devine was before the Court to be punished under that sub-section for breach of the condition of the recognizance or for the original offence of carnal knowledge. In addressing the Court counsel for the Crown said :

"I suppose, your Honour, bearing in mind the fact that although the girl was under the age of sixteen, at that time there appeared to be a mutual infatuation between the two and she was largely instrumental . . . ."

At that point the judge interposed :

"I thought she was at the time. I do not think at that stage I knew the sort of record the accused had, or perhaps I had not taken cognizance of it fully because I intended to give him a chance."

Counsel did not afterwards make any submissions on the question of sentence. His Honour addressing Devine said :

"This is a bad show from a number of points of view and not the least of the effects of your offence is that it discourages judges from giving people consideration - could tend to discourage judges from giving accused people consideration in the way that you had. I thought I was giving you a chance and I accepted your word at the time, and Mr. Justice Kerr had very much the same approach in August 1966 and you have let both of us down and broken your bond in a number of different ways. "It is quite obvious to me from the sight of your record that you are just incorrigible and I do not think that there is anything that can be done that will effect any reformation in you way of life. I have seen so many of these cases and they all proceed along the same pattern, but your record is one of complete defiance of the law and of complete disregard for the rights of other people in a number of ways. I do not think anything I say will make any impression on you in the light of what I now know about you and in the light of the fact that you have given everybody, including the police, an undue amount of trouble. "I sentence you to three years imprisonment with hard labour." (at p510)

6. Counsel for the Crown then applied for a formal order that the recognizance be forfeited and the judge made the order. (at p510)

7. Seemingly the primary object for which the proceedings were instituted was the forfeiture of the recognizance. If the case had really been the trial of Devine for an offence under s. 20, sub-s. (2), the estreat of the recognizance would have automatically followed on his conviction, by virtue of s. 20, sub-s. (4). Section 20, sub-s. (1), gives the Court power to bind over a convicted person to be of good behaviour and to comply with such other conditions as it thinks fit to impose. The sub-section does not expressly give power to bind over to come up for sentence. It is said in Archbold, Criminal Pleading Evidence and Practice, 36th ed. (1966), p. 207, that binding over to be of good behaviour is not to be confused with binding over to come up for judgment if called on to do so. The difference between these two things is no doubt of importance in deciding whether on the true interpretation of s. 20, sub-s. (1), the Court may under these provisions bind over to come up for judgment if called upon. If the Court may not do this it would seem that the remedy for failure to comply with a condition of the recognizance would be a prosecution under s. 20, sub-s. (2). It is of interest to note that in the list of punishments found in Stephen's History of the Criminal Law of England (1883), vol. 1, p. 457, "putting under recognizances" is mentioned. See also Stephen's Digest of the Criminal Law, 8th ed. (1947), p. 33. (at p511)

8. If the true view of s. 20, sub-s. (1), is that power to bind over to come up for sentence is not conferred by s. 20, sub-s. (1), and the Supreme Court of the Australian Capital Territory has no inherent power to do so, it is obvious that the sentence under consideration cannot stand. It is argued however that the Court has inherent power to abstain from imposing a sentence of imprisonment and in lieu thereof to release the convicted person on the condition that he enters into a recognizance to come up for sentence when called upon to do so and in the meantime to be of good behaviour. The Crown relied upon the case of R. v. David (1939) 27 Cr App R 50 to support the efficacy of the notice whereby the Crown initiated the proceedings in which the sentence in question was imposed. I should need to have these questions further argued before deciding them. (at p511)

9. For the purpose of the appeal I take the view that Devine was validly called up for a judgment to be pronounced on the conviction for the crime against the girl and to estreat the recognizance. It is apparent that the judge thought the first time he considered what punishment Devine deserved that in the circumstances of the case it was appropriate to put him under the recognizance. There is nothing in the evidence adduced in the latest proceedings which shows it was not right for his Honour to take that course. Judged against that standard I think that a sentence of three years imprisonment is demonstrably excessive. In my opinion, taking the mitigating circumstances into consideration, it was sufficient punishment of Devine to undergo imprisonment from 6th April 1967, the date of the sentence in question, until 8th August 1967, the date of the order of this Court granting leave to appeal, a term of which was that Devine be released forthwith from gaol. (at p512)

KITTO AND TAYLOR JJ. We have had the advantage of considering the reasons prepared in this matter by our brothers Windeyer and Owen. Apart from the difficult question of the meaning and effect of s. 20 of the Crimes Act - as to which we do not find it necessary to express an opinion - we agree with them that leave to appeal should be granted, that the conviction for breach of the applicant's recognizance should be quashed and the sentence set aside. We merely add that it is obvious from the observations made in the reasons to which we have referred that s. 20 requires legislative clarification. (at p512)

WINDEYER J. This case came before us as an application for leave, pursuant to s. 52 of the Australian Capital Territory Supreme Court Act 1933-1965, to appeal against a sentence of three years imprisonment imposed upon the applicant in the Supreme Court of the Australian Capital Territory. The only ground taken was that the sentence was excessive. When the case was opened however it became apparent that, apart from any question of the length of the sentence, the regularity of the proceedings which had led up to it was questionable. (at p512)

2. The questions turn upon the effect of s. 20 of the Crimes Act 1914-1960 (Cth). It is convenient to set it out in full here :

"20. (1) If the Court thinks fit to do so, it may release any person convicted of an offence against the law of the Commonwealth without passing any sentence upon him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for such period as the Court thinks fit to order and will during that period comply with such conditions as the Court thinks fit to impose, or may order his release on similar terms after he has served any portion of his sentence. (2) If any person who has been released in pursuance of this section fails to comply with the conditions upon which he was released, he shall be guilty of an offence. Penalty : Imprisonment for the period provided by law in respect of the offence of which he was previously convicted. (3) The penalty provided by the last preceding sub-section may be imposed by the Court by which the offender was originally convicted or by any Court of Summary Jurisdiction before which he is brought. (4) In addition, the recognizance of any such person and those of his sureties shall be estreated, and any other security shall be enforced." (at p513)

3. The opening words of the section "If the Court thinks fit to do so" must be read as referring to any court before which an offender was convicted. This was clear when s. 19 immediately preceded s. 20, although it is by no means so clear when the Act is read with s. 19B interposed. (at p513)

4. On 4th May 1965 the applicant, whom I shall hereafter call the offender, pleaded guilty before Dunphy J. in the Supreme Court of the Australian Capital Territory to a charge of carnally knowing a girl above the age of ten and under the age of sixteen. This offence is created by the Crimes Ordinance 1951, which substituted a new section for s. 71 of the Crimes Act 1900 (N.S.W.) in its application to the Territory. The Interpretation Ordinance 1937-1959, s. 7 (1), then brings the offence within s. 20 of the Commonwealth Crimes Act, "as if it were an offence against the law of the Commonwealth". I am inclined to think that it would, in any event, be properly so described because, as I said in Spratt v. Hermes (1965) 114 CLR 226, at p 276 the expression "a law of the Commonwealth" is in my view applicable to any law made by or under the authority of the Commonwealth Parliament. (at p513)

5. His Honour, without passing sentence, released the offender on his entering into a recognizance in the sum of 200 pounds. The recognizance is wrongly dated and in two places it seems ungrammatical and garbled. But the conditions of the bond were that the offender be of good behaviour for three years ; appear for sentence if called upon at any time in the said period ; not see the girl concerned except at times and under conditions stipulated ; and report to the police once a month. In releasing the offender on these conditions his Honour purported to act under s. 20. Counsel for the Crown contended however that the two obligations, to be of good behaviour and to come up for sentence if called upon, could each be supported by common law, and that s. 20 did not supplant the common law. What was done in this case could, he said, be justified as an exercise of common law powers. I shall therefore first consider the common law which he sought to invoke. (at p513)

6. Justices of the peace have for centuries had power to bind over offenders to be of good behaviour in the future. This and the power, related but distinct, of binding persons to keep the peace make up the "preventive justice" of which Blackstone spoke. The authority of justices is said to be founded on the terms of their commission, and upon the Act of 1361, 34 Ed. III c.1, or some say on a misreading of it. It suffices to say here that in modern times courts have said that, whatever its origin, the power to require sureties for good behaviour is an indisputable part of the jurisdiction of justices of the peace and also of such other persons, including the judges of the King's Bench and of gaol delivery, as have the authority of justices of the peace : Hawkins, Pleas of the Crown, Ch. 8 ; Wise v. Dunning (1902) 1 KB 167 ; Lansbury v. Riley (1914) 3 KB 229 ; R. v. County of London Quarter Sessions Appeals Committee ; Ex parte Metropolitan Police Commissioner (1948) 1 KB 670, at p 673 ; Reg. v. Sharp; Reg. v. Johnson (1957) 1 QB 552, at p 562 . A judge of the Supreme Court of Australian Capital Territory has "the like authority to hold to security of the peace and for good behaviour in matters arising under the laws of the Territory as may then be lawfully exercised by a Judge of the Supreme Court of New South Wales in cases cognizable by him" : Australian Capital Territory Supreme Court Act 1933-1964, s. 55 : and, by 9 Geo. IV c. 83, the Supreme Court of New South Wales has inherited the jurisdiction of the Court of King's Bench and of judges of gaol delivery. (Moreover in the present case the recognizance was acknowledged before the Deputy Registrar of the Court, described as being a justice of the peace.) I conclude that a judge of the Supreme Court of the Territory has power, independently of s. 20, to bind over an offender to good behaviour, either in substitution for or in addition to a term of imprisonment. Section 20 does not I think entirely supersede this : cf. R. v. Trueman (1913) 29 TLR 599 . Blackstone in a passage which has often been quoted - e.g. in R. v. Sandbach ; Ex parte Williams (1935) 2 KB 192, at p 196 - said :

"This preventive justice consists in obliging those persons, whom there is probably ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen."

And in Wise v. Dunning (1902) 1 KB, at p 175 a passage is quoted from an Irish case where the expression used was "a caution against the repetition of the offence". Kitto J. has however pointed out in Chu Shao Hung v. The Queen that

"the power conferred by s. 20 of the Crimes Act is not similarly conditioned. It arises, according to the express terms of the section, whenever a person is convicted of an offence against the law of the Commonwealth ; and it is obvious that by no means all such offences give cause for apprehension of future misbehaviour" (1953) 87 CLR 575, at p 590.

Section 20 seems to be intended to create a kind of probationary as well as preventive jurisdiction. (at p515)

7. In the present case Dunphy J. made his order after having evidence of the offender's habits and of his record. He had had some twenty convictions. One was for an attempted breaking and entering, for which he had been put upon a bond ; another was for dangerous driving, for which he had served a goal sentence. The others were for relatively minor traffic offences. His Honour, after hearing what was urged in the offender's favour by a solicitor who appeared for him, said :

"I am going to take a chance so far as you are concerned and I do not intend to impose a sentence at the moment, but I will release you on a bond under s. 20 of the Crimes Act."

He then stated the conditions of the bond in respect of not associating with the girl and went on :

"The position is this : if you break the bond - the police will be keeping some sort of an eye on you - then you will come up for sentence, or you will be dealt with under the proper procedure which will mean that you will receive a sentence for this offence. If you breach the law in other ways you will also breach the bond in the sense that the bond will involve you being of good behaviour for three years, so you had better get rid of your car, or whatever vehicle you have, and make sure you do not offend the traffic laws again because so far your numerous offences in that field and in other fields of criminal law indicate that you have no regard for the law at all up to now." (at p515)

8. I cannot perceive the rationale of the proposition that by driving a motor car at more than thirty miles an hour the offender would render himself liable to be punished for having had intercourse with a girl under the age of sixteen. And I do not think that his Honour meant his admonition to be so understood. It is true that s. 20 (2) makes any breach of the condition of good behaviour, whatever the nature of the breach, a substantive offence, the penalty for which would be measured, in this case, by the penalty the law provides for the offence of carnal knowledge. But that is a very different thing from saying that any conduct amounting to a breach of the condition of good behaviour would result in the offender being punished for the offence of carnal knowledge. Whether that could lawfully be done depends upon whether his Honour could, when making an order for the release of the offender under s. 20, impose the condition that he come up for sentence if called upon. That condition is altogether different from the condition of good behaviour, although they have often been joined to make up what has been called "the common law bind-over" (at p515)

9. On many occasions, and over a long period, offenders have been released on undertakings to come up for sentence if called upon. Such conditional releases, the forerunners of the more elaborate forms of probation now provided for by statute in many jurisdictions, were the result sometimes of the exercise by justices of express statutory authority : e.g. the Summary Jurisdiction Act, 1879 (U.K.), s. 16 (2), and similar enactments. Sometimes however they were based simply on a common law discretion to postpone sentence : Keen v. The Queen (1847) 10 QB 928 (116 ER 352) ; R. v. Spratling (1911) 1 KB 77 , and see Reg. v. Richardson (1840) 8 Dowl 511 ; Reg. v. Ryan (1855) 7 Cox CC 109 . I am, however, unable to find any basis for such a condition when an offender is released under s. 20. It cannot come within the words "that he will be of good behaviour for such period as the Court thinks fit to order and will during that period comply with such conditions as the Court thinks fit to impose". I do not say that it is beyond the power of a court of the Territory to bind a person over to come up for sentence if called upon. I do not have to decide whether that is so or not. What I do say is that, in my opinion, an obligation to come up for sentence on the original charge cannot be made a condition of a release under s. 20. That is because when s. 20 speaks of releasing an offender "without passing sentence upon him", it does not, I consider, refer to releasing him from custody with sentence postponed, but to releasing him absolutely from liability in respect of the conviction. He may still, if he breaks his bond, suffer a penalty equivalent to that provided by law for the offence of which he was convicted. But that is because s. 20 (2) creates a new substantive offence, namely failure to comply with the conditions on which he was released. The possibility of conviction and sentence for that offence is not I consider compatible with a continuing liability to be sentenced for the old offence. Introducing into a recognizance under s. 20 an obligation to come up for sentence in respect of the original offence is thus unwarranted. This conclusion is reinforced by contrasting s. 20 with s. 19B. (at p516)

10. I need not recount all the events of this case. I am relieved of stating some which are relevant as they are set out in the judgment to be delivered by my brother Owen. I go to 6th November 1966 when the offender, then still subject to the obligations of his recognizance, was apprehended by the police when he was driving a motor vehicle at an excessive speed in Canberra. He gave a false name. On 28th November he was convicted at the Court of Petty Sessions of three offences, namely exceeding the speed limit, giving a false name to the police, and driving a motor vehicle whilst disqualified from holding a licence. On the first two charges he was fined. On the third, driving when disqualified, he was sentenced to three months imprisonment with hard labour. While he was serving this sentence, and not until a day or two before it expired, he was served with a notice which, after preliminary recitals, reads :

"And whereas the said conviction of 28th November 1966 constitutes a breach of a term of the recognizance of 5th May 1965, namely to be of good behaviour for three years. Now therefore take notice that you Peter Edward Devine are hereby required to be and appear in your own proper person before the Supreme Court of the Australian Capital Territory to be holden at the Law Courts of the Australian Capital Territory on Thursday, 2nd March, 1967, at ten o'clock in the forenoon of the same day for the hearing of an application for an order that the said recognizance be forfeited and for such other order as to the Court may seem meet. Crown Solicitor for the Commonwealth." (at p517)

11. The statement that the conviction constituted a breach of a term of the recognizance is an elliptical way of saying that the offence of which the cognizor was convicted was a breach of the condition of good behaviour. (at p517)

12. The offender, on being released from imprisonment, on or about 28th February, did not obey this summons ; and a bench warrant was issued for his arrest. He was brought before Dunphy J. in the Supreme Court on 6th April 1967. Evidence was called of the conduct of the offender before the conviction for the driving offence : the circumstances of that offence were then proved by the police : and the convictions were proved. His Honour - having heard what was said on behalf of the offender by his solicitor and having ascertained from counsel for the Crown that the penalty provided for the offence of carnal knowledge was ten years imprisonment - then addressed the offender. He said among other things "you have broken your bond in a number of different ways". He then sentenced him to three years imprisonment with hard labour - the sentence now complained of - and also ordered his recognizance to be forfeited. (at p517)

13. Much of the trouble in the case arises from the way in which these proceedings were conducted. What was the offence with which the offender then stood charged, for which the sentence was awarded? Was he sentenced upon the conviction of carnal knowledge, on the assumption (mistaken I think) that, pursuant to his recognizance, he could be, and had been, called up for sentence? Or, was he sentenced for an offence under s. 20 (2), on the basis that, by driving when disqualified, he had broken the condition of good behaviour? The record is not completely convincing either way, because there was no formal and precise statement of the matter for which the offender had been brought before the Court. Counsel for the Crown, in opening the case to his Honour, said only "these are proceedings for the forfeiture of a recognizance and further order". (at p518)

14. The result of the proceedings was recorded as follows :

Coram Dunphy J. 6.4.1967

Verdict Guilty of breach of recognizance

Date of Verdict 6.4.1967 Date of Pronouncement of sentence 6.4.1967 Sentence Devine sentenced to three years imprisonment with hard labour and recognizance forfeited.

This accords with a note made by the clerk which is on the file. (at p518)

15. The statement that the offender was found guilty of breach of his recognizance is perhaps equivocal, because in England when a person who was bound over to be of good behaviour and to come up for sentence is brought up, he is said to be before the court for a breach of his recognizance. In R. v. David (1939) 27 Cr App R 50, at p 54 , Humphreys J., delivering the judgment of the Court of Criminal Appeal, said :

"It is commonly said that a person is brought up for a breach of his recognizance, and that is a natural expression to use, but it is not an accurate one. He is in fact brought up to receive the judgment of the Court on the conviction recorded against him - in other words, he is brought up for sentence."

However an offence under s. 20 (2) is also aptly described as a "breach of recognizance", although the correct form of the charge is failing to comply with the conditions on which the accused was released : see e.g. Reg. v. Wong Ah Wong (1957) SR (NSW) 582 . (at p518)

16. From the transcript record of the proceedings before Dunphy J. I would have thought that the offender was regarded by his Honour as being before the court because he had broken his obligation of good behaviour, and was to be dealt with for the offence constituted by s. 20 (2). But since we heard the case a letter has been received from his Honour in which he explains that his intention was to sentence the offender for the original crime, carnal knowledge. The offence, his Honour says, ought not to have been described as "breach of recognizance". The formal record he says is incorrect. There is old authority that "If a clerk had made a misentry of record, the judge, before whom it was, might, ore tenus rectify that misentry, though a considerable time after": Hale, Pleas of the Crown, I, 646. But this power is not now unlimited; and it seems to me that we must accept what appears in the Court record as a statement of what occurred. However I accept of course his Honour's explanation that the sentence of three years imprisonment was intended by him to be in respect of the conviction for carnal knowledge. That being so, the sentence must I consider be quashed, because his Honour having released the offender under s. 20 without passing sentence for that offence he could not in my view thereafter pass sentence for it. (at p519)

17. I must add that, even if it had been open to his Honour to pass sentence upon the basis that he did, I would still think that for two reasons the sentence ought not to stand. (at p519)

18. In the first place, there were, it seems to me, irregularities in the proceedings which led up to it. The written notice given to the offender did not state that he was called up for sentence on the original conviction. He was brought before the court under arrest, but he was not formally told on what charge he was to be sentenced: and the allocutus was never put to him; perhaps it was unnecessary that it should be, see Reg. v. Rear (1965) 2 QB 290 . He was represented by a solicitor who addressed his Honour in mitigation of punishment; but it is not clear that she, any more than the clerk who made the entry in the record, appreciated what was the charge which her client was there to answer. It seems that the proceedings were conducted by the Crown according to the practice prevailing in the Territory, and that little consideration was given to the requirements of s. 20. This it seems led his Honour to misapprehend the position. (at p519)

19. In the second place, the sentence seems to me too severe in the circumstances. The offender was an irresponsible youth. His conduct was reprehensible. But his Honour, fully informed of his record and antecedents, had thought justice and the public interest would be best served by releasing him under s. 20. There were in his Honour's view some extenuating circumstances, and he exercised his discretion in a way which it is not suggested was not fitting. I do not see how thereafter driving a motor car without a licence, and serving a sentence of three months for doing so, could so drastically change the position and make the offender liable to imprisonment for three years for his earlier conduct. The two forms of misbehaviour are entirely incongruous. (at p520)

20. I pass now to consider how the matter should be regarded on the alternative assumption - which his Honour disclaims, but which as I understood it counsel for the Crown did not - that the sentence was imposed for the offence created by s. 20 (2). Again an irregularity appears if this offence was indictable, as having regard to the penalty provided in this case it seems that it was. There was no indictment, indeed no formal charge of any kind: the accused was never arraigned, never called upon to plead: and he was convicted without the allocutus being put. These, it may be said, are merely omissions of formalities. It may be the practice in the Territory to omit them. Nevertheless the observance of the established forms and solemnities of a criminal trial help to ensure the due administration of justice. And even if all defects be overlooked, should the offender be punished for a breach of his obligation of good behaviour, being the breach of the traffic law when he had already served three months in prison for that offence? Can an offender who has been punished once for an offence be punished again under s. 20 (2) on a charge of failure to comply with the conditions upon which he was released? That it seems is prohibited by s. 20 (2) of the Acts Interpretation Act (Cth). Moreover the Court of Criminal Appeal in England pointed out twenty-five years ago how undesirable it is to do what was done in this case - that is to call a person up for breach of a recognizance for good behaviour when he was undergoing a sentence: R. v. Tarbotton (1942) 1 All ER 198 . (at p520)

21. In the result I consider that the sentence of three years imprisonment should be quashed whether it was awarded for the offence of carnal knowledge or under s. 20 (2). (at p520)

22. If I should be wrong in thinking that the imposition of the sentence was unwarranted in law, I would think it excessive. The period for which the offender was imprisoned until released by the order of this Court seems to me to have been enough for any offence for which the offender could, when the sentence was imposed, have been lawfully punished. As to the order that the recognizance be estreated: There was no application that this be set aside. And, although I would myself be disposed to quash it too in order that the offender should, for the remainder of the term of three years, remain bound to good behaviour, that course seems unsatisfactory, especially as the terms of the bond need clarification and perhaps modification. I would therefore leave this part of the case as the Supreme Court left it. (at p521)

23. No question was raised as to the jurisdiction of this Court. By the Australian Capital Territory Supreme Court Act 1933-1965, s. 52, leave to appeal against the sentence of the Supreme Court of the Territory can only be given when the applicant has been convicted on indictment or of an indictable offence. An amendment of the section, made in 1964, overcame limitations made apparent by the decision of this Court in Jackson v. The Queen (1962) 108 CLR 591 , but it is still necessary that the sentence in question should have been in respect of an indictable offence. As I have said, I consider that the sentence in this case - whether it be regarded as for an offence under s. 20 (2) or under s. 71 of the Crimes Act, 1900 (N.S.W.), as applied to the Territory - was in respect of an indictable offence, notwithstanding that some difficulties in the way of this view might be thought to arise from the judgments in Isaacs v. McKinnon (1949) 80 CLR 502 . (at p521)

24. Before parting with the case I would make one further observation. It is that s. 20 is not harmonious with ss. 19A, 19B and 20A. They reflect a more recent policy of probation. The provision of s. 20A in relation to termination of "supervision" is not readily applicable to s. 20. It seems that the Parliament might now well review s. 20 and make it accord better with the sections by which it is now surrounded, and remove the doubts and difficulties of interpretation which these proceedings have made manifest. The compressing into one paragraph of provisions for a release without passing sentence and for a release when a sentence has been partially performed raises questions of some difficulty. (at p521)

OWEN J. This matter came before us on an application for leave to appeal against a sentence of three years imprisonment with hard labour imposed upon the applicant by Dunphy J. sitting in the Supreme Court of the Australian Capital Territory on 6th April 1967. It appeared from the notice of motion for leave to appeal and the supporting material that it was intended to argue that the sentence was excessive and this was the submission first made to us on behalf of the applicant. During the hearing of the application however members of the Court raised a number of matters which appear to have escaped notice at the hearing in the Supreme Court. They involve a consideration of the steps which led up to and resulted in the imposition of the sentence and raise a number of difficult questions of general importance. (at p522)

2. After hearing argument we were satisfied that if the case was one in which a sentence of imprisonment might lawfully be imposed, one of three years was excessive and that a sentence of six months would have been appropriate. We were informed by counsel for the Crown that if that sentence had been imposed by the learned trial judge then, taking into account the remissions the applicant would have received for good conduct, he would have been released from custody by the time his application for leave to appeal came on to be heard. Accordingly we made an order granting leave to appeal, directed that the applicant be discharged from custody and added that we would give our reasons later and make any additional order that we might think necessary in the circumstances of the case. (at p522)

3. To understand the questions involved it is necessary to set out the history of the matter in some detail. (at p522)

4. On 12th April 1965 the applicant was charged before a Court of Petty Sessions in the Australian Capital Territory upon an information alleging that he had had carnal knowledge of a girl above the age of ten years and under the age of sixteen years. The maximum penalty for the offence is ten years imprisonment with hard labour. The applicant pleaded guilty and was committed for sentence to the sittings of the Supreme Court. On 4th May 1965 he came before Dunphy J. in the Supreme Court and pleaded guilty. The depositions taken in the Court of Petty Sessions were read to his Honour and he heard evidence as to the applicant's previous convictions the majority of which were for offences against the traffic laws. The case was adjourned until the following day and when the hearing was resumed his Honour said that he did not intend "to impose a sentence at the moment" but would "release" the applicant "on a bond under s. 20 of the Crimes Act" - that is to say the Commonwealth Crimes Act - "to be of good behaviour for three years" upon certain conditions which he then stated. He told the applicant that if he committed a breach of the bond "then you will come up for sentence, or you will be dealt with under the proper procedure which will mean that you will receive a sentence for this offence". By "this offence" I am not clear whether his Honour was referring to the offence to which the applicant had pleaded guilty or to the offence which is created by s. 20 (2) of the Commonwealth Crimes Act. The amount of the bond was fixed by his Honour at 200 pounds. (at p522)

5. Section 20 of the Commonwealth Crimes Act which is made applicable to the Territory by s. 7 of the Interpretation Ordinance and under which his Honour acted provides that:

"20 (1) If the Court thinks fit to do so, it may release any person convicted of an offence against the law of the Commonwealth without passing any sentence upon him, upon his giving security . . . by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for such period as the Court thinks fit to order and will during that period comply with such conditions as the Court thinks fit to impose, or may order his release on similar terms after he has served any portion of his sentence. (2) If any person who has been released in pursuance of this section fails to comply with the conditions upon which he was released, he shall be guilty of an offence. Penalty: Imprisonment for the period provided by law in respect of the offence of which he was previously convicted. (3) The penalty provided by the last preceding sub-section may be imposed by the Court by which the offender was originally convicted or by any Court of Summary Jurisdiction before which he is brought. (4) In addition, the recognizance of any such person . . . shall be estreated, and any other security shall be enforced." (at p523)

6. Following his Honour's order a recognizance was entered into by the applicant in the sum of 200 pounds. For some reason, presumably carelessness on the part of the person responsible for filling it in, the recognizance was dated 5th March 1965, two months before his Honour's order was made. By it the applicant acknowledged himself to owe the Crown 200 pounds if he should fail to perform the conditions set out in it. The document went on to recite the conviction for carnal knowledge and that

"the said Court under and by virtue . . . of s. 20 of the Commonwealth Crimes Act . . . did on 5th May 1965 without passing sentence make an order releasing the Offender conditionally on his entering into recognizance in the sum of Two hundred pounds (200 pounds) to be of good behaviour for the term of three years now next ensuing there appear for sentence if and when called upon in the said period".

It proceeded to state other conditions which his Honour had imposed and closed with the words:

"If therefore the Offender shall be so of good behaviour and comply with the conditions of the aforesaid then this recognizance shall be void or else stand in full force and virtue."

It is difficult to understand the meaning of the phrase "to be of good behaviour for the term of three years now next ensuing there appear for sentence if and when called upon in the said period". Some words have, I suppose, been carelessly omitted but presumably it was intended to bind over the applicant to appear before the Supreme Court for sentence if and when called upon to do so following upon a failure to be of good behaviour. (at p524)

7. Having regard to the terms of s. 20 I feel considerable doubt whether a convicted person who, pursuant to s. 20 (1), is ordered to be released without any sentence being passed upon him can later be called up and sentenced for the offence of which he has been convicted. The sub-section seems to contemplate that if he is so released but fails to comply with the conditions upon which the order for release is made, he thereby commits the offence created by sub-s. (2) and incurs the penalty for which it provides and it would seem strange that in such circumstances it was intended that he should be liable to be sentenced for the original offence and at the same time subjected to the further penalty for which sub-s. (2) provides. If that cannot be done, it would follow that a condition that he come up for sentence for the original offence if called upon to do so could not be imposed under s. 20 (1). I do not find it necessary, however, to express a concluded opinion on that question for reasons which I shall presently state. (at p524)

8. The next step in the history of the matter occurred sometime in 1966 when a document signed by the Crown Solicitor or some person acting on his behalf but which, as reproduced in the appeal book, is undated was served upon the applicant. It recited the conviction for carnal knowledge and the release of the applicant upon recognizance and went on to set out two of the conditions of that recognizance, one that the applicant should not see the girl except in certain stated circumstances, the other requiring the applicant to report to the police at regular intervals. It alleged that the applicant had failed to comply with the first of these conditions and called upon him to appear before the Supreme Court of the Territory on 2nd August 1966 "for the hearing of an application for an order that the said recognizance be forfeited and for such other order as to the Court may seem meet". (at p524)

9. Pursuant to this requirement the applicant appeared before Kerr J. in the Supreme Court on 4th August 1966. His Honour rightly drew attention to the fact that s. 20 (2) of the Crimes Act seemed "to envisage breaches being dealt with by prosecution" and counsel for the Crown replied that

"the proceedings . . . are being taken firstly on the conditions of the bond itself, and we are calling upon the common law jurisdiction of the Court to deal with the matter in that line rather than take statutory proceedings against Devine for an offence. In other words, we are going outside the particular statutory provisions".

The recognizance was then tendered and evidence was given by a police officer that on the night of 17th January 1966 at 9.15 p.m. he had seen the applicant and the girl sitting together in the front seat of a motor car. This would have been a breach of a condition of the recognizance. The applicant and the girl gave evidence to the effect that the car belonged to one Thompson; that Thompson had been driving the girl to her home when the car broke down and that Thompson had asked the applicant - who usually serviced the car - to come and rectify the trouble and that these were the circumstances in which the meeting had taken place. After hearing argument, his Honour said that he would make no order. (at p525)

10. In November 1966 the applicant was charged before a Court of Petty Sessions in the Territory with three offences under the Motor Traffic Ordinance and was convicted on each charge. The offences all occurred on the same day. One charge was that, being required by a police officer to state his name and address, he had given a false name and a false address and on this he was fined $60 and in default of payment ordered to be imprisoned for sixty days. Another charge was that he had exceeded the speed limit and on this he was fined $60 and in default ordered to be imprisoned for sixty days. The third charge was that he had committed an offence against s. 193 (5) of the Motor Traffic Ordinance in that he had driven a motor car whilst disqualified from holding a driving licence. For this offence he was sentenced to imprisonment for three months, a sentence which he served. A few days before his discharge from prison the applicant was served with another undated document signed by the Crown Solicitor or some person acting for him which recited (inter alia) the conviction for carnal knowledge and that the applicant had been released upon a recognizance to be of good behaviour for three years and to appear for sentence if called upon. It went on to allege that he had been convicted in November 1966 of an offence against s. 193 (5) of the Motor Traffic Ordinance and had been sentenced to three months' imprisonment and that this was a breach of the condition of the recognizance to be of good behaviour for three years. It called upon him to appear before the Supreme Court on 2nd March 1967 "for the hearing of an application for an order that the said recognizance be forfeited and for such other order as to the Court may seem meet". (at p525)

11. The applicant did not appear before the Court on 2nd March and a bench warrant was issued for his arrest. On 6th April he appeared before Dunphy J. and was represented by a solicitor. The transcript of the proceedings which followed is headed -

"Between THE QUEEN and

PETER EDWARD DEVINE (Breach of recognizance)"

and at the close of the proceedings a verdict of "guilty of breach of recognizance" was recorded, followed by the statement "Sentenced to three years imprisonment with hard labour and recognizance forfeited". In a further document which is included in the appeal book the following record appears:

"REGINA V. DEVINE

Before His Honour Mr. Justice Dunphy Canberra Thursday 6th day of April 1967. To show cause for breach of recognizance in this matter.

EXHIBIT A Recognizance entered into by Peter Edward Devine on the 5th May 1965.

EXHIBIT B Three Certificates of Conviction. SENTENCE Sentenced to 3 years imprisonment with hard labour. Order that recognizance be forfeited."

The record of the Supreme Court thus records that the appellant was convicted of the offence created by s. 20 (2) of the Crimes Act and sentenced to imprisonment for three years and that his recognizance was estreated. (at p526)

12. Since the close of argument, however, the learned trial judge has informed us by letter, which he asked to be regarded as a report made pursuant to O. 70, r. 33, of the High Court Rules, that the record of the proceedings is incorrect and that the sentence of three years imprisonment was in fact imposed for the offence of having had carnal knowledge of the girl and not for the offence created by s. 20 (2) of the Crimes Act. This, to say the least of it, discloses a most unsatisfactory state of affairs, particularly when the record which is said to be incorrect is one which concerns the liberty of the subject. I do not find it surprising, however, that the record should appear as it does. The application to the Court was for an order estreating the applicant's recognizance and for such other order as the Court might think fit to make in order to carry that into effect. Counsel for the Crown opened by saying:

"Your Honour, these are proceedings for forfeiture of a recognizance and further order."

Later the learned judge, when addressing the applicant, before passing sentence, said:

"This is a bad show from a number of points of view and not the least of the effects of your offence is that it discourages judges . . . from giving accused people consideration in the way that you had."

And the "offence" to which the learned judge was there referring was plainly the applicant's failure to comply with the conditions of the recognizance upon which he had been released. (at p527)

13. The question then arises whether we are entitled to deal with the case upon the basis that the record of the Supreme Court - a superior court of record - is wrong and that the sentence was in fact imposed for the offence of which he was earlier convicted. I am of opinion that we cannot do so. The record as it stands is, in my opinion, conclusive. The matter can be tested by supposing a case in which an accused person wishes to plead autrefois acquit or autrefois convict in answer to a charge made against him. In support of his plea he produces the record of his earlier trial which shows that he was acquitted or convicted, as the case may be, of the offence with which he presently stands charged. Evidence tendered by the prosecution to show that the record of the earlier trial was incorrect and that the offence of which he was then acquitted or convicted was not that which was shown by the record would be inadmissible. Evidence tendered by the defence to show that the earlier offence of which the accused had been acquitted or convicted was not that which was recorded but was in fact the same offence for which he was standing his trial would be equally inadmissible. (at p527)

14. In my opinion then we must treat the case as one in which the applicant was convicted and sentenced for an offence against s. 20 (2) of the Crimes Act, the breach of the recognizance consisting of the fact that he had driven a motor car whilst disqualified from holding a driving licence contrary to the provisions of s. 193 (5) of the Motor Traffic Ordinance. For that unlawful act, however, the applicant had already been punished and s. 30 (2) of the Acts Interpretation Act provides that:

"Where an act or omission constitutes an offence under both - (a) . . . (b) an Act and an Ordinance of a Territory of the Commonwealth, and the offender has been punished for that offence under the . . . Ordinance . . . he shall not be liable to be punished for the offence under the Act." (at p527)

15. In these circumstances the applicant could not, in my opinion, be punished for the offence against s. 20 (2) of the Crimes Act, either by imposing a sentence of imprisonment or ordering that his recognizance be forfeited. (at p528)

16. For these reasons I think that the orders made by Dunphy J. on 6th April 1967 should be quashed. (at p528)

17. I should add, however, that at no stage was any objection raised by the solicitor appearing for the applicant to the course which the proceedings took nor was the learned judge's attention directed by either party to the problems involved. (at p528)

Orders

Leave to appeal granted.

Appeal allowed.

The conviction of the appellant by the Supreme Court of the Australian Capital Territory on 6th April 1967 quashed.