Dimozantas v The Queen

[1992] HCATrans 252

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M17 of 1992

B e t w e e n -

ANGELO STEPHEN DIMOZANTOS

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 31 AUGUST 1992, AT 2.19 PM

Copyright in the High Court of Australia

Dimozantos(2) 1 31/8/92

MR M.S. WEINBERG, QC:  May it please the Court, I appear,

together with my learned friend,

MS L. LIEDER-MRAZEK, on behalf of the appellant.

(instructed by Valos Black & Associates)

MR R.S.L. WILD, OC: If the Court pleases, I appear on

behalf of the respondent, with my learned friend,

MS E.H. CURTAIN. (instructed by J.M. Buckley,

Solicitor for the Director of Public Prosecutions

(Victoria))

MASON CJ:  Mr Weinberg.

MR WEINBERG: If the Court pleases. The Court should have

the outline of submissions.

MASON CJ:	We have the outline.
MR WEINBERG:	And a folder of material. The folder should

consist simply of section 3 of the Crimes Act of Victoria, together with four decisions which the appellant will rely upon: the cases of Schultz,

Dumas, Stone and the decision of this Court in Veen

V Reg.

If the Court pleases, the trial judge in this

case, as the Court understands, sentenced the
appellant upon the footing that the maximum

sentence available for the offence of incitement to

murder in the State of Victoria was, at the
relevant time, life imprisonment and it is the

appellant's contention that that was an error and

that, in fact, the maximum sentence that was

available was a term of imprisonment of 15 years.

The argument which we develop in our

submissions is essentially this, that if one turns

to section 321! which is set out conveniently in

the appeal book at page 93 - if we could invite the

Court to go to that - the structure of sentencing

for offences such as incitement in Victoria is an

unusual one. The offence of incitement to murder

is not separately identified and there is no

specific penalty ascribed to that offence. What happens instead is that one has to work out into

which of the four categories contained within

section 321! the offence of murder itself falls,

and by doing that one reaches the conclusion that a

particular maximum penalty is the one that is

available.

So, for example, if the penalty for murder

were one that was fixed by law within the meaning

of paragraph (a), then the maximum penalty

available for incitement to murder would be the

same as for murder. It seems to have been accepted

Dimozantos(2) 31/8/92

by the trial judge and by the Court of Criminal

Appeal that paragraph (a) was not applicable in the

circumstances of this case because, as the Court

will readily see from an examination of section 3

of the Crimes Act which creates the penalty

provision, it is difficult to describe that penalty

as being one that is fixed by law in any relevant

sense, given that the judge is given a discretion

as to what sentence to impose.	He may impose a
term of -

imprisonment -

(a) for the term of his or her natural life;

or

(b) for such other term as is fixed by the

court -

as the court determines.

So, it is a very odd form of sentence, and we will

come to the historical reasons for that in just a

few moments in the course of our argument.

One then comes to paragraph (b) which is the central provision of our argument. Paragraph (b)

provides that:

if the relevant offence, or any of the

relevant offences, is an offence for which the

penalty is imprisonment for a term the maximum

length of which is not prescribed by law, the

person shall be liable to imprisonment for a

term of not more than fifteen years.

That contains a combination of two positives and

two negatives, if we may put it that way. In order

to bring oneself within paragraph (b), it must be

demonstrated that what one is talking about is a term; one is talking about imprisonment; one is	talking about something which can be described as
the maximum length, and one is talking about
something which is not prescribed by law. If one
falls within paragraph (b), then 15 years is the
maximum penalty, and one does not get to
paragraph (c) because paragraph (c), as the Court
will see, is regarded as being "subject to
paragraphs (a), (b) and (d)". One only gets to
paragraph (c) if neither (a) nor (b) nor (d) is the
applicable provision governing the sentence.

What the Court of Criminal Appeal and what the

trial judge did in the present case was to bypass

(b), get to (c) and conclude that the penalty for

incitement to murder fell within paragraph (c)

because there was a maximum penalty prescribed by

Dimozantos(2) 31/8/92

law. The maximum penalty prescribed by law, it was

said, was "term of his or her natural life" and by

that route the court said that is the maximum for

incitement to murder. Our contention is that one

chops off the route to (c) by falling within (b)

before one gets to (c).

BRENNAN J: Are you suggesting that one does not look at (c)

in the course of construing (b)?

MR WEINBERG:  Not that one does not look at (c) or one may

not look at (c) for the purpose of construing (b)

but, at the end of the day, if one is satisfied

that the sentence fairly falls within (b), one goes

no further, one need go no further and, indeed, one

is enjoined not to go further.

BRENNAN J: There was no controversy about that proposition

in the courts below, was there?

MR WEINBERG:  No, Your Honour. We do not think so,

Your Honour. We do not anticipate there will be

any dispute about that, that that is the correct

mode to proceed under the statute. The controversy

arises because both the trial judge and the Court

of Criminal Appeal ruled that (b) was not

applicable, therefore (b) was bypassed and it went

into (c). We say that it does not get beyond (b)

and that is what this appeal is all about, putting

the matter very briefly and very simply.

Now, that is what we have set out in

paragraphs 1, 2 and 3 of our outline of submissions
as the Court has it. Paragraph 4 of our outline
notes that the form of sentencing for the offence

of murder in Victoria is as set out in the papers

that we have provided to the Court, and if we could

just spend a moment or two on the unusual nature of

that form of sentence. We say that there is only

one other offence which we can find that carries a

similar type of sentence in Victoria; that is

treason under, I think it is section 9(a), but it	is a very unusual type of sentence because it has
had added on to it paragraph (b) which was not
there originally.
When capital punishment was abolished in Victoria in 1975, it was originally proposed that a
provision in exactly the terms of section 3 as it
now stands, 3(a) and (b), would be introduced to
replace it but what happened was that paragraph (b) went out - it was cut out - and the term of
imprisonment for murder was made a mandatory term, imprisonment for natural life, and we can do no
better than to refer the Court to Reg v Schultz,
(1976) VR 325, which demonstrates both the

Dimozantos(2) 4 31/8/92

interpretation of that original section and the

history of the section itself.

Your Honour Justice Dawson may recall that

case. Your Honour appeared in that case on behalf

of the Crown, as the case indicates. But shortly

after section 3 was introduced, it was contended
that section 3 in its then form permitted a trial

judge a discretion. The trial judge could impose a

term of life imprisonment or, it was contended, he

could also impose a lesser term than life

imprisonment because the words of the statute,

section 3, were, "liable to imprisonment for the

term of his or her natural life", and that was the

issue that had to be determined by the Full Court

in Schultz's case. It was a question of construing

those words "liable to", and the Court will see at

pages 326 and 327 how that debate was developed

through the argument in the case. It was argued on

behalf of the applicant in that case:

that the words "liable to" are apt to confer a

discretion on the Court.

It was argued on behalf of the Crown - Your Honour

Justice Dawson putting this argument - that those

words should be read as though they were
imperative, as though the words were "shall be
imprisoned for the term of his natural life", and

Your Honour Justice Dawson carried the day because the court held that it was mandatory and there was no discretion to impose any lesser term.

Your Honours will see at page 328 of the

judgment, at the top of the page, an argument that

Your Honour Justice Dawson was not successful with.

Your Honour attempted to persuade the court that it

was entirely permissible to look at the history of the provision as it went through Parliament in the debate to gain some insight into its meaning,

ultimately, and Your Honours will see that the	original form of section 3, when it was a bill in	Parliament, is in identical terms to section 3 as
it now appears after its amendment in 1986. So, what happened was that part (b) was chopped off;
it did not go through in that form but 11 years
later it was introduced when it was decided to give
judges sentencing for murder a discretion rather
than making it a mandatory life sentence.

The case is important not simply because it

establishes that those words "liable to

imprisonment for the term of his or her natural

life" were mandatory and did not permit a lesser

sentence, it is also important because of what it says about "the term of natural life", the nature of "the term of natural life", and we draw

Dimozantos(2) 5 31/8/92

attention particularly to passages which appear at

the top of page 327 where, at about line 4, the

court said this:

Secondly, the section authorizes a term

measured by reference to the life of a person and equal to the whole of that life, which is

of uncertain duration. It thus necessarily

excludes any term fixed by reference to a term

of years which is of certain duration.

We invite the Court to note that distinction,

"uncertain duration" versus "term of years" -

"certain duration."

We also invite the Court to look at page 329,

half-way down the page at line 27:

We are clearly of the opinion thats. 3

leaves - - -

DAWSON J: It is only in one sense that it is uncertain. In

every other sense it is completely certain, is it

not?

MR WEINBERG:  It is completely certain in the sense that a

person will stay there until he dies unless

somebody determines to release him, that is so,

Your Honour. It is uncertain in the sense that one

does not know how long that will be at the time

that the sentence is passed and, in that sense, it

is indeterminate and indefinite. And, of course,

the courts have always acted on the assumption that

a life sentence means exactly that. One assumes

that the person who is sentenced to life

imprisonment may have to serve every single day of

that sentence unless and until - - -

DAWSON J: But I was only just saying that since it is

certain in the sense in which you describe it,

there is also a maximum length.

MR WEINBERG: Well, we will come to that argument,

Your Honour.

DAWSON J: Very well.

MR WEINBERG:  We will debate that with Your Honour a little

later in the course of our submissions but we do

not accept that there is a maximum length in that

sense, Your Honour.

But if we could go back to page 329 just for the moment, line 27:

We are clearly of the opinion thats 3

leaves the Court no discretion. The reason is

Dimozantos(2) 6 31/8/92

that "the" term to which the person convicted

is liable to be sentenced is the term of his

natural life and such a term contains no

alternative and admits of no qualification.

Since no one can say how long the term of a

person's natural life will last, the phrase is

simply inapt to contain within itself any

lesser term.

And if we could invite the Court to consider that

passage very closely, and we will come back to it

in just a moment or two. And the final passage is

at the bottom of page 329:

It is clear that that sub-section can

have no application to a sentence of

imprisonment for the term of a person's

natural life. Such a term is neither

necessarily less than nor necessarily more

than two years.

Now, what emerged from Schultz's case, in our

respectful submission, in terms of those three

passages and observations, is that a term of

imprisonment for the natural life of the prisoner

who is sentenced is indeterminate and indefinite in

the sense that at the moment that he is sentenced

nobody can say how long, measured in terms of units

of time, that person will serve in prison. It is,

of course, finite in one sense, finite in the sense

that it will not last any longer - - -

DAWSON J:	Why is not a lifetime a unit of time?
MR WEINBERG:	Your Honour, it is not a unit of time which is

specific and ascertained and calculable at the

moment that the lifetime sentence is imposed. It

is not a unit of time in the relevant sense,

Your Honour, we say, because it is not a unit which

is capable of being quantified by any measure of

time that is customarily used. Of course, we know

that in leases there are lifetime leases, we know

that the figure of life or life in being has been

used for other purposes in the law such as the rule

against perpetuities and so forth, but it is an

indeterminate measure, we say, in the sense that it

does not - - -

DAWSON J: But it is not indeterminate. It cannot be

quantified prospectively but it can be

retrospectively.

MR WEINBERG:  We can find out eventually how long it was

that the person served before he had concluded his
sentence. What we cannot do is say what is the

length of the sentence that the court has imposed

upon you in quantifiable terms, knowable terms,

Dimozantos(2) 31/8/92

precise terms, at the time that the sentence is

imposed. Many courts have used this language, not

just the Court of Criminal Appeal, in relation to

life sentences, including the High Court itself.

It has spoken of life sentences as being, in that sense, indeterminate. Your Honour is quite correct

to say it is certain and it is ultimately

retrospectively capable of being ascertained, but

it is indeterminate and indefinite in the sense

that at the moment that sentence is passed no one

can say what the duration of the imprisonment will

actually be by virtue of that sentence being

passed.

It is almost like a condition, Your Honour. "The condition of your release is that you die", is

another way of putting it. "The condition of your

release, after being gaoled for criminal contempt,

is that you purge your contempt." It is not a

measure of time in the sense that a term of years

or a term of months or a term of weeks is, and

there are real difficulties, we say, about fitting

that kind of concept into a notion of maximum

length. But, again, we will come back to that.

DAWSON J:  I have stopped now, but I suppose one of the

stronger arguments is the maximum length of it is

not prescribed or fixed by law; it is fixed by

divine forces or whatever it might be.

MR WEINBERG:  Of course, Your Honour, and Your Honour will

see we will come to that a little later in the

course of our submissions when we deal with the

words "prescribed by law". But for the moment we

are simply endeavouring to put before the Court

what the cases have said about the nature of a life

sentence and we are urging the Court to accept that

courts have readily accepted the proposition that

in the sense in which we advance it, a life

sentence is an indeterminate sentence or an

indefinite sentence because it does not have that

feature of precise calculability at the moment the

sentence is imposed.

Again, to assist with that argument, could we

invite the Court to look at Veen v Reg, 143 CLR

458, and there are two passages that we would draw

attention to with careful qualification. They are

in the judgment of Your Honour Justice Mason, as

Your Honour then was, at page 470 of the judgment where Your Honour, at about line 7 or 8 at the top

of the page, referred to life imprisonment in these

terms:

However, the view has been expressed in the United Kingdom that a sentence of life

imprisonment, which is wholly indefinite, is

Dimozantos(2) 31/8/92

not governed by the normal concepts of
proportion between offence and sentence
whereas a fixed term sentence must not be
excessive in relation to the facts of the

offence, irrespective of any other

justification for lengthy detention.

And we say we qualify that because one cannot gain

from a reading of that passage whether

Your Honour's remarks were confined to "life

imprisonment" as understood in the United Kingdom

or whether Your Honour Justice Mason intended that

to be a general observation about the nature of

life imprisonment. We would prefer the latter

interpretation but Your Honour would know what

Your Honour intended by that particular passage.

MASON CJ:  My recollection is not so precise and exact that

I can recall what I intended, say, 12 or 13 years

ago.

MR WEINBERG:  No, Your Honour. Perhaps when Your Honour has

read the passage Your Honour will give the appropriate interpretation to those words, hopefully the one that we advance. At page 477

His Honour Justice Jacobs said something similar.

At about the end of the first major paragraph, His

Honour said:

The development in England of the

principle that an indeterminate sentence of

life imprisonment may be desirable even in a

case where the whole of the circumstances of
the offence do not on general principles
warrant such a sentence has proceeded from two

bases.

Again, it is the concept of an indeterminate

sentence of life imprisonment that we draw upon in

that particular judgment.

Now, it should be said right away that we are

not contending that the sentence of life

imprisonment is not the greatest penalty that can

be imposed. We accept that it is the greatest

penalty that can be imposed but that is not the

same thing as a sentence, the maximum length of

which is prescribed by law, and it is that

distinction that we will be urging upon the Court

and developing as we proceed. ·

We accept that as things stand, without

capital punishment, the greatest penalty that can

be imposed is a term of imprisonment for one's

natural life. There is no greater penalty.

Notionally, one could be sentenced to a term of

500 years but a term of imprisonment for one's

Dimozantos(2) 31/8/92

natural life would be, at least theoretically, a

greater penalty than a term of even 500 years

imprisonment based on the absurd but logical

possibility that somebody could live that long,

because a term of natural life simply excludes any

release from prison until the person has died and

thereby concluded serving his or her sentence.

We, having taken the Court to those two

passages, point out that those two cases were, of

course, decided before the alteration to section 3

and, indeed, in Veen' s case it did not deal with

section 3 at all, it dealt with the New South Wales

equivalent which cut out a sentence of life

imprisonment, but subsequent to the amendment to

section 3 which we are talking about, which

occurred in July 1986, there have been two other

Victorian decisions which have also spoken of the

penalty under section 3, as amended, as creating an

indeterminate or indefinite sentence, and if we

could note the two cases in Your Honours' folders:

the case of Reg v Stone, (1988) VR 141, at firstly

page 147, and Your Honours will see that at about

line 28 this passage appears in the judgment of the

Court of Criminal Appeal:

The mandatory sentence of life

imprisonment for murder has been abolished. A person convicted of murder is now liable to be imprisoned as the Court determines either for

the term of his natural life or for such other
term as is fixed by the Court. It is thus for

the Court to decide whether a person convicted
of murder is to be imprisoned for the term of

his natural life or for a term of years. It is to be noted that the choice thus given to the Court is in a form not usually employed in

statutes prescribing punishment for offences.

The court then set out the more usual form, and

then at line 45 on the page the court said this: The news 3 of the Crimes Act, however,

does not prescribe a maximum sentence for

murder, although of course a person cannot be

imprisoned for longer than the term of his

natural life. Instead of fixing a maximum

sentence for murder Parliament has fixed upon

an alternative. It has said that the sentence is either to be for the term of the prisoner's natural life or for a term of years as the

Court determines.

And it then goes on to other matters.

At page 149, at the bottom of the page at

line 49, the court rejected an argument that was

Dimozantos(2) 10 31/8/92

advanced by counsel for the respondent in that

case:

we do not think that it is possible to

categorize murders with such precision. First

the Court must decide whether the particular

murder is appropriate to be punished by life

imprisonment or by imprisonment for a term of

years, bearing in mind that it is the

indeterminate nature of life imprisonment that

has led to its being criticized as

inappropriate punishment.

And then about 10 lines further on that page:

We turn to the question of the minimum

term. First, we think that notwithstanding
the barbarous nature of the killing it is

appropriate to fix a minimum term in this

case. To do so will go a long way towards

converting an indeterminate sentence into a

finite one.

So, the court, in relation to section 3 in its

present form, certainly characterized the penalty

that could be imposed for murder as involving what

it called an indeterminate sentence in the way that

we describe it. And the same thing can be gleaned

from the case of Dumas, (1988) VR 65, the last of

our four cases in Your Honours' folders, and at

page 69, about line 40, the court said this:

On the following day his Honour passed sentence and, having referred to the facts at

some length, his Honour referred to the recent

legislation which enabled a finite sentence

for murder to be imposed instead of life

imprisonment and enabled a fixed minimum term

to be imposed which would not be subject to

remissions.

And, again, at page 71, Your Honours will see at

line 12 this passage:

Upon the basis that the learned judge did not fall into the error of departing from the

principle that the punishment must be

proportionate to the crime the question still

remains whether, in the light of the recent

legislation which enables the Court to pass

finite sentences for murder and to fix minimum

terms, the sentence was manifestly excessive.

And at the very bottom of page 71, line 48:

The power to fix a minimum term may, and no

doubt will, be exercised as a means of

Dimozantos(2) 11 31/8/92

converting an indeterminate sentence into a

finite one in cases where the proper

authorities consider that, after the minimum
term has expired, it is appropriate for the

offender to be released on parole.

So, these are but a sampling of many cases

where life imprisonment has been considered and has

been described in terms such as "indeterminate" or

"indefinite". That really deals with our

paragraphs 5, 6 and 7 on page 1 of our outline of

submissions.

We note in paragraph 8 of that outline that

the difference between section 3 prior to the 1986
amendments and after the 1986 amendments is that

prior to 1986, section 3 provided for a sentence

fixed by law albeit, we say, indeterminate; after

1986, section 3 provided for a maximum penalty - and this comes back to what we said before - but

not one fixed by law. The maximum length of the
penalty remains indeterminate, that is, not

prescribed by law, in our respectful submission.

In paragraph 9 at the top of page 2, we

formulate the question which the court below and

the trial judge had to resolve, and we note in

paragraph 10 that if section 3 fell within the

description of being a term of imprisonment, the

maximum length of which is not prescribed by law,

then the maximum should have been 15 years and not

life imprisonment. Paragraph 11 commences our

analysis in our argument to this Court of

paragraph (b). Your Honours will see that we have

identified four requirements in section 321I(l)(b)
in order for that section to be capable of being
triggered.

We say they are, firstly, that there must be imprisonment, there must be something which can be

described as a term. Then one moves into the

negatives: maximum length and not prescribed by

law. So, there are two positives and two

negatives. So far as the two positives are

concerned, the Court will note that section 3

provides for imprisonment and only imprisonment as the penalty for murder. Section 3 does not permit

some non-custodial form of punishment.

The court has a discretion as to whether the

imprisonment be:

(a) for the term of his or her natural life;

or

(b) for such other term as is fixed by the

court -

Dimozantos(2) 12 31/8/92

as the court determines.

But nothing except imprisonment is available as the punishment for murder. So that we say element (i), imprisonment, is made out when one looks at

section 3. It is an offence which carries with it

necessarily imprisonment. The second requirement,

in order to come within paragraph (b), is that

there be a term. We say that also is made out

because section 3, in terms, refers to the word

"term", both in paragraph (a) and in paragraph (b):

(a) for the term of his or her natural life;

or

(b) for such other term as is fixed by the

court -

So, as far as the two positives are concerned, we

submit they are plainly established.

The real gist of this case is whether it can be said that the punishment for murder, as set out

in section 3, fairly can be described as being a

penalty other than one, the maximum length of which
is not prescribed by law, and we say it cannot be

described as being other than a penalty, the

maximum length of which is not prescribed by law.

We have done paragraph 12, and if we go to

paragraph 13, we make this submission: we say that

the words "maximum length" in paragraph (b) -

again, we invite the Court to go to page 93 and to

examine those words "maximum length" in context in

paragraph (b) - of themselves suggest a measurable
period of time; a period of time which we say

ought to be capable of being ascertained in years,

months, weeks, days, in other words, ordinary

standards of measurement. One talks of the

"maximum length" of a sentence. One talks about a

measurement of time as that term is commonly and

ordinarily understood, in our respectful

submission.

It is submitted that imprisonment for the term

of a person's natural life just does not fall readily within that description, that is, the

concept of a maximum term. While one can say with

certainty that a sentence of this nature will end when the prisoner dies, that is, one can identify the condition which will conclude the serving of

the sentence, one cannot say when that condition

will occur and that is a response that we make to Your Honour Justice Dawson's point to us a little

earlier.

Dimozantos(2) 13 31/8/92

DAWSON J:  I suppose you can say that the purpose of

section 321I is to cope with a situation where the

type of incitement to commit an offence may vary

considerably according to the offence which was

incited.

MR WEINBERG:  Yes, Your Honour, that is so.

DAWSON J: And looking at murder and the punishment for

murder, of course, the types of murder can vary

considerably.

MR WEINBERG:  Yes, Your Honour.

DAWSON J: So, from the point of view of policy, really, one

should not treat section 3 as fixing a maximum
penalty, it fixes something that is variable as

incitements are variable.

MR WEINBERG: 

As murder is itself now, because the penalty

for murder now can range from life imprisonment
down to one day's imprisonment, at least

notionally.

DAWSON J: Yes.

MR WEINBERG:	We would, with respect, agree with what Your Honour has put to us that that is so. Of
course, prior to 1986 the penalty for incitement to
murder in Victoria would necessarily have been life
imprisonment if life imprisonment was a penalty
fixed by law because we would have fallen within
paragraph (a). But once Parliament changed the
structure for the penalty for murder, in our
respectful submission, and freed murder from being
an offence where the penalty was fixed by law, we
say with that flowed certain other consequences and once such consequence was that the penalty for murder fell into paragraph (b) and not, we say,
paragraph (c). Everyone agrees that it was no
longer within paragraph (a). The question is
whether it gets stopped at paragraph (b) or whether
it goes on beyond paragraph (b).  We say it gets
stopped at paragraph (b). One reason we say that is because of the words "maximum length".
A second reason we say it, and this needs a little more careful analysis and we hope we have made our meaning clear, in paragraph 14, if we can
expound on that.  We say that one can derive
certain implications from the words "prescribe by
law" when those words are read in conjunction with
the words "maximum length". So that if you analyze that whole concept, "maximum length" and "not
prescribed by law", we ask, what does that suggest?
We say that it suggests that what Parliament must
have done, when it prescribes the maximum length of

Dimozantos(2) 14 31/8/92

a sentence - what Parliament is doing when it

prescribes the maximum length of a sentence is

imposing an upper limit upon what might otherwise

be the term of imprisonment to be imposed by a

sentencing judge.

DAWSON J:  On the other hand, the interpretation which you

are suggesting would result in anomalies, would it

not, because 15 years is the maximum under (b), but

if, for instance, you incited someone to commit the
offence of armed robbery, the maximum there would

be 25 years, something like that?

MR WEINBERG: That might be so, Your Honour.

DAWSON J:  So that it would be less for murder than it would

be for a number of other offences.

MR WEINBERG: Less for incitement to murder, Your Honour.

DAWSON J: Than it would be for inciting a number of other

offences.

MR WEINBERG:  But that is because, Your Honour - and that

might well be so, Your Honour, we accept that that
could be the consequence of the interpretation,

that we say flows inexorably from an ordinary and

natural construction of these words. But, if it be

so, it is simply a reflection of the fact,

Your Honour, that the penalty for murder is in such

a strange and indeterminate state as it presently

stands. If one actually goes to section 3 and if

one asks, "What is it that section 3 does? .. , we

say, "Broadly speaking, it says a judge can
sentence a person to any term of imprisonment he

wishes". That is what it does - - -

DAWSON J:  Up to.

MR WEINBERG:  Your Honour, there is no beyond "Up to". No

one can sentence a person - - -

DAWSON J: Up to - up to, for the term of his natural life.

MR WEINBERG: Well, Your Honour says "up to", but certainly

"up to" suggests "and not beyond" and there can be no "and beyond" is what we are saying. One cannot

sentence a person to imprisonment beyond the term

of that person's natural life.

DAWSON J:	We cover the same ground then.
MR WEINBERG:	Yes. We are coming at it from a different

point. But what we say is that if one looks at

that expression "prescribed by law"; adds it to

"maximum length" and puts the two together and

analyses it rigorously, one comes to this

Dimozantos(2) 15 31/8/92

conclusion, that when Parliament prescribes by law

a maximum length, everyone of those words being

given full weight; "prescribes by law a maximum

length", what Parliament is doing is saying, "We

are setting the upper limit and you cannot go

beyond what we are setting". That must be what the

words "prescribe by law a maximum length" connote,

in our respectful submission.

Now, if that is so, if that is what Parliament

is doing when it prescribes by law a maximum

length, we say that an upper limit of that kind, by

its very nature, must suggest that, absent

Parliament setting that upper limit there would

have been a logical possibility of setting

something higher than that upper limit. In other

words, either this means that Parliament is setting

an upper limit or it does not. If it means that

Parliament is setting an upper limit, then it

follows that Parliament is saying, "You can go no

further. You cannot go beyond this upper limit".

And if that is what it is saying, then we say that

by its very nature one can see that there is no

logical possibility at all of setting a longer or

greater term of imprisonment than imprisonment for

the natural life of a particular person. There is

no greater term of imprisonment than one which

lasts until the prisoner dies, but if that is so,

it follows again, we say, as a matter of logic,

that imprisonment for the term of a person's

natural life cannot be imprisonment for a term, the

maximum length of which is prescribed by law within

the meaning of the section.

I do not know whether I have made my argument

clear on that, but what we are saying is, that to

set an upper limit presupposes that it is possible

to impose a longer sentence than the upper limit

which Parliament has proposed. If it is

impossible, having regard to that particular

sentence which is available to a judge, to exceed

the upper limit, then it must follow that the

sentence which has been imposed is one which the maximum length of which is prescribed by law and cannot be one, the maximum length of which is not

prescribed by law.

We say that for those two reasons focusing

upon the words "maximum length" and focusing upon

the words "prescribed by law", looking at both of

those concepts separately, for the different

reasons enunciated in paragraphs 13 and 14, one can

readily arrive and one is inexorably driven, we

submit, to the conclusion that a sentence of

imprisonment for the term of one's natural life, if
looked at in isolation, if that is what you are

focusing on - paragraph (a) of section 3 - if that

Dimozantos(2) 16 31/8/92

is what you are looking at, that of itself cannot

be a sentence other than one, the maximum length of

which is not prescribed by law. I apologize for

the double negatives but the section requires it.

That is not the only way one can look at

section 3. I mean, one can look at it, in

isolation, as two discrete parts. One can look

firstly at 3(a) and say, "Well, looking at 3(a) in

isolation, is that option, which available to a

sentencing judge, an option which falls within or
outside the terminology of paragraph (b) of

section 321I", but one does not have to read the

section in that discrete way, one can aggregate the
section. One can look at the two parts together.

If one looks at paragraph (b) in isolation, for example, there is no doubt that that falls within

section 321I(b), because a provision which says

that you can impose whatever term of years you

like, self-evidently, is a provision in which the

maximum length is not one prescribed by law,

because it is simply a sentence at large.

So, if one looks at it separately, in those

ways that we have described, (a) then (b), we say

you come to the conclusion that this power of

sentencing which a judge is given for incitement to

murder necessarily falls within section 321I(b).

If one aggregates the two and puts them together,

again one comes to the same conclusion, we submit,

because if you aggregate them you then have to ask

yourself, "What is it that a judge can do as a

result of the combination of 3(a) and 3(b)?" And

the answer is, "He can impose a term of

imprisonment of any duration that he wishes, or

that he deems appropriate, up to", as Your Honour

Justice Dawson would say, "the term of your natural

life".

Well again, that is not, in our respectful

submission, any different to the penalty for

murder, penalty for any common law offence which is	at large. A common law misdemeanour, historically,
was an offence which did not carry capital
punishment. It was an offence for which the
penalty was at large. It could mean either a term
of imprisonment or not a term of imprisonment. In
so far as it meant a term of imprisonment, it could be a term of imprisonment of any duration up to an
including the term of one's natural life.

Now, we say that paragraph (b) is designed, in

effect, to deal with those situations where

sentencing for the offence, which is inside, it is,

in effect, at large, if one aggregates, and if one

does not aggregate and treats them discretely and

separately, and does the exercise that we have

Dimozantos(2) 17 31/8/92

done, we say in neither case can it be said that

there is a sentence for murder, the maximum length

of which is prescribed by law. We accept that

there is a maximum penalty that can be imposed, but

that is not the same as a maximum length prescribed

by law, and we invite the Court to do what

Justice Brennan invited me to do at the

commencement of my submissions, and that is to

compare and contrast the language of paragraph (b)

with paragraph (c), where the Court will see in

paragraph (c) the concept that is used is "maximum
penalty". In paragraph (b) it is "maximum length

of which is not prescribed by law".	So they are
not -

BRENNAN J:  Mr Weinberg, does your argument come to anything

more than just "maximum length" means that

temporarily it must be measurable in a lapsed time

as years, months or days?

MR WEINBERG: At the time that the sentence is imposed,

Your Honour.

BRENNAN J: Yes, that is it, is it not.

MR WEINBERG: That is it.

BRENNAN J: And it is a question of looking at those words

and seeing whether, in their whole context, it

means that or something different.

MR WEINBERG: That is our argument, Your Honour, in relation

to paragraph 13. It is not quite our argument in

relation to paragraph 14 of our submissions, which
is that one gains additional support or an

independent basis for our argument based on the

words "prescribed by law". We say "maximum length

prescribed by law" means that you have to be able

to contemplate something greater. If you cannot

contemplate something greater - - -

BRENNAN J: I do not understand that at all, I must say,

because it seems to me that if the law prescribes

the maximum that can be prescribed as the maximum

for that sentence so be it.

MR WEINBERG: Well, Your Honour, it is "maximum length

prescribed by law" and one asks, "Well, what does

that mean?". We say it means that Parliament sets

the most that can be imposed by a judge, and we say

the most that can be imposed by a judge connotes

the judge cannot, as a matter of law, impose more

than that.

BRENNAN J: Well, why as a matter of law?

Dimozantos(2) 18 31/8/92

MR WEINBERG:  Because that is the purpose of prescribing by

law, we submit, the maximum that a judge can

impose - - -

BRENNAN J:  No. The purpose of prescribing the maximum by

law is to allow the judge to sentence up to that.

MR WEINBERG: But, Your Honour, it is maximum length

prescribed by law and our submission is - and maybe

it is another way of putting the argument that

Your Honour has put very succinctly.	We find some
force in the argument.	It may not immediately be

attractive to Your Honour but we would endeavour to

rest our argument. Your Honour, I think,

understands what we are saying. Your Honour is

skeptical about it, but we say that it is a

separate and independent basis upon which our

argument can stand and does stand and it is not as

though Your Honour is in any difficulty in

understanding what I am putting. It seems that

Your Honour is skeptical about the validity of what

and I will not do that. We do say they are twin

I am putting, and I do not know that I can persuade

bases for our submission.

BRENNAN J: Yes.

MR WEINBERG:  Your Honours, I should say that since the time

that we sought special leave in this matter there

has been a new sentencing regime introduced into

Victoria by virtue of the operation of the sentencing regime does not affect the point of

principle that is involved here at all. The new

form of sentencing for incitement to murder and

incitement for all offences is exactly the same as

it was at the time this appellant was dealt with,

and the same problem arises, save that

paragraph (b) would now give rise to a different

maximum penalty for incitement in relation to

matters that fall within paragraph (b). That has

been reduced from 15 years to 60 months, but

60 months without remissions. There are no longer

remissions under Victorian sentencing law. So,
whereas paragraph (b), in its condition prior to
March, I think it is, of this year, would have been

15 years less remissions, or effectively 10 years.

The new penalty, if one falls within paragraph (b)

of section 321I(g), would be 60 months without

remissions.

DAWSON J:  Do the judges not have to calculate the - now,

the sentence taking into account that there are not

remissions?

Dimozantos(2)	19	31/8/92
MR WEINBERG:	Yes. Your Honour.	They have to do some

mathematics to make sure that when they impose a

sentence they bear in mind the fact that remissions are no longer available and they are required, as I understand the new provisions, to compensate for

that. But it is part of the general campaign to do away with sentences that do not mean what they

apparently say.

BRENNAN J:  If this sentence was set aside what would be the

governing law for the resentencing?

MR WEINBERG:  Well, Your Honour, it would be sent to either

the Court of Criminal Appeal, or the trial judge.

It would be a matter for this Court as to where the

matter would be remitted.	We would say the Court
of Criminal Appeal.

BRENNAN J: What would be the governing law?

MR WEINBERG:  The governing law, Your Honour, would normally

be the law which applied at the time that he was

sentenced, except where I think that the principle

is under the interpretation of the Legislation Act.

If the penalty for the offence has been reduced,

subsequently, I think my recollection is, that he

is entitled to any reduction in the penalty that

has been subsequently made, and I have not
researched that thoroughly, but I think that is the

position. I think that if the sentence is

subsequently increased you do not find yourself

subject to the potential increase, but I think the

position is that if the penalties are subsequently

reduced you are able to take advantage of the

lighter penalties. That is my recollection of the

provisions. So it may be that he would be subject

to a maximum of 60 months.	I could not assert
that, Your Honour.

It is a lot closer to what, we say, an offence

of incitement ought to carry and in any event. It

is true that originally in 1984 it was thought that

incitement to murder should carry 20 years;

attempted murder carried 15 years, and so forth,

and before that it carried 10 years with remission,

so we are coming back to something like what it
used to be 10 or 15 years ago, but it has certainly

never been life imprisonment, except for that very

short period of two years between 1984 and 1986

and, with respect, one can see no earthly principle

which suggests why it should be life imprisonment,

particularly when attempted murder carries

15 years. Those were special leave points, they are not really points addressed to this argument

which is based on the construction of the section.

Dimozantos(2) 20 31/8/92

Unless there are any questions that the Court

has for me, those are our submissions, in support
of the appellant.

MASON CJ: Thank you, Mr Weinberg. Mr Wild.

MR WILD:  If the Court pleases. We have handed up,

Your Honours, an outline of argument, and also some

material on which we intended to rely. That
material includes some legislation and second

reading speeches and matter of that kind, which we

propose to take the Court to during the course of

our submissions.

MASON CJ: Yes.

MR WILD:  Thank you, Your Honour. Your Honour, the question

that appears to be resolved by the Court is whether

or not section 3 of the Crimes Act provides a

maximum penalty for the offence of murder in the

State of Victoria, and our submission will be that

it does provide a maximum penalty in terms. Having

answered that question it leads to this question,

which follows from my learned friend's argument,

"Is there any greater penalty known to the law, in

terms of imprisonment, than a penalty sentence of

life imprisonment?" And again, we would say that

"No" is the answer to that, as far as Victoria is

concerned and as far as the courts - the States

generally throughout Australia.

We would submit to the Court that our learned

friend's argument begs this question, "Does the

fact that a life sentence is during the lifetime of the prisoner indeterminate in any way, diminish the

maximacy or ultimacy of that sentence?". In other

words, the argument our learned friend puts is that

because there is some uncertainty about the time

which the prisoner will serve in a life sentence,

therefore the life sentence itself is not a maximum

sentence~	We say that does not influence the
position one way or another. The legislature - - -

BRENNAN J: It does not say "a maximum sentence", it says a

sentence "for a term of maximum length".

MR WILD: Yes, well, Your Honour, our learned

BRENNAN J: Maximum sentence is under (c), is it not?

MR WILD:  Our learned friend endeavours to, with respect,

seduce the Court by turning the Court's attention

away from subsection (c) to (b), but if you look

carefully at (c), with respect, the reason that the

expression "penalty" is used in it is because that

subsection is dealing with a whole range of

possible sanctions. It is not restricted to

Dimozantos(2) 21 31/8/92

penalties of imprisonment. So it uses the

expression "penalty" advisedly, whereas

subsection (b) uses the expression carefully as

"maximum length" of imprisonment because that is

what that subsection is dealing with. It is dealing
with possible imprisonment sanctions where that is

the sanction that is available, but where there is

no maximum provided. So the reason for the two

different expressions being used in those two

subsections is clear, and it does not advance my

learned friend's argument one iota, in my

submission.

Now, the submission that we ultimately make is that, as the Court of Criminal Appeal found,

subsection (c) is the operative subsection,

although we do not necessarily concede that the

Court could not have found that subsection (a)

still does not have some applicability. But we do

not propose to argue that because we say we do not
need to argue that.

BRENNAN J: Does subsection (c) include "term of

imprisonment" within the term "penalty"?

MR WILD:  Yes, Your Honour, it must do.

BRENNAN J: Well, if it does, then "terms of imprisonment"

fall both within (b) and (c).

MR WILD: Well, they might do, Your Honour, but the - - -

BRENNAN J: Well then, if they might do - - -

MR WILD:	No.
BRENNAN~:	- - - (c) is general and (b) is particular.

MR WILD: With due respect, Your Honour, subsection (c) is

dealing with cases where there is a maximum

penalty, whether it be by amount of money, a fine;

or whether it be by a length of probation or

whether it be by a length of imprisonment.	It
covers all of those conditions.	Now, if there is -

if you then look at the head offence, the
substantive offence and find that that substantive
offence has a maximum penalty prescribed for it,

then you do not need to look back at (b) and find a

situation where there is no prescribed maximum.

Subsection (b) would have no applicability at all,

and that really is what this argument comes down to

because we argue and our submission is that

subsection (c) squarely applies to this situation

on a very easy interpretation - simple

interpretation of the words used, and you never get

to (b) to try and slot it into (b) as my learned

friend has endeavoured to argue here today.

Dimozantos(2) 22 31/8/92

That is the way in which I would answer

Your Honour. It is our intention, as part of our

submissions, to demonstrate that the legislature

intended a maximum penalty of life imprisonment, to

apply to offences of conspiracy and/or incitement

to murder.· We will take the Court to the

legislation and to the second reading speeches to

demonstrate that.

DAWSON J: Are there any other offences for which

imprisonment is mandatory as opposed to murder?

MR WILD:  Yes, there are two others, Your Honour. My

learned f.riend mentioned treason. The other one we

found is piracy, which is section 70A - - -

DAWSON J: Otherwise there is no offence for which penalty

is imprisonment for a term. For all other offences

there are alternatives, are there not?

MR WILD: What subsection, Your Honour?

DAWSON J: Well, I am looking (b) - - -

MR WILD: Yes.

DAWSON J: It speaks only, as you point out, of

imprisonment.

MR WILD: Yes.

DAWSON J: But for all other offences, bar treason, piracy

and murder, there is an alternative to

imprisonment, is there not?

MR WILD:  Not to murder, Your Honour.

DAWSON J:, No, no, that is what I am saying, the number of

offences for which the penalty is imprisonment and

only imprisonment are very few.

MR WILD: That is so, Your Honour, with respect. And we

would say, furthermore, that not only did the

legislature intend a maximum penalty of life

imprisonment - perhaps I should emphasize that: a

maximum penalty of life imprisonment, not a
mandatory penalty of life imprisonment, was
intended by the legislature as far as incitement to

murder was concerned. At one stage my learned

friend, I think, may have confused the two, but it

is a maximum which is fixed quite clearly by

subsection (a), and that - perhaps I would

interrupt the thread of my argument to put this: if

what my learned friend says is correct about the

indeterminacy of the life sentence, then

subsection (a) would never have had any effect because it provides that the penalty shall not

Dimozantos(2) 23 31/8/92

exceed the penalty for the relevant offence. My

learned friend says there really is not a penalty

because it is so indeterminate: that being the life

imprisonment sentence. So, subsection (a), if that

is correct - if that argument is correct - never
had any meaning.

Now, that is certainly not what the legislature thought, as I will demonstrate in one

moment. Now, the other point that will run through

the submissions we make is this: the law has always

regarded the ultimate term of imprisonment - I am

talking about particular Australia and Victoria -

as life imprisonment. That is 'the maximum term of

imprisonment and the maximum sanction, once death

penalties are removed, that is available. And, in

that sense to say that a penalty which involves

life imprisonment is anything but a maximum is, in

our submission, mere sophistry. If I take the

Court to the outline itself - - -

BRENNAN J: Can I just interrupt you for a moment. In

answer to Justice Dawson I understood you to say

that there are only three offences in respect of

which imprisonment was the only penalty, but if one

looks at the Crimes Act one sees that the formula

adopted by the Crimes Act is to prescribe penalties

for a variety of offences in terms of imprisonment

or blank years, is that not right? I am looking

at, for example - it opened by chance - section 58:

Procuring sexual penetration of child under
the age of 16 •••••

Penalty: Imprisonment for 5 years.

MR WILD:  Yes.

But they are set as maximums in those provisions, Your Honour. They are the maximum

available for those particular offences.

- -::'.:) .-.

BRENNAN J: That is right. But is there any reason why (b)

would not apply to a case like that?

MR WILD:  (b) would not apply, Your Honour, because they are

offences for which the maximum penalty is

imprisonment for a term, the maximum length - - -

BRENNAN J: Of course, yes.

MR WILD:  Those type of offences would, Your Honour, fall

squarely within (c) we would say.

BRENNAN J: Yes.

GAUDRON J: Does your argument allow any operation for

paragraph (b)

MR WILD: Yes, Your Honour.

Dimozantos(2) 24 31/8/92

GAUDRON J: Yes? What is it?

MR WILD:  There would be some offences left over in common

law where there are sentences of imprisonment

available but for which there is no maximum set

down. Prior to the introduction, for example, of
these particular provisions of conspiracy and

incitement, there were open-ended sentences of

imprisonment available for conspiracy and

incitement.	Now, of course, they were done away
with - - -

GAUDRON J: They have gone.

MR WILD:  - - - by these very sections, but without being

able to point Your Honour to the precise offences,

there are other offences that, at least at that

time, were open ended, so far as penalties are

concerned. Perhaps, during the course of my

remarks I can bring some to mind, Your Honour.

GAUDRON J: Or your junior might think of them.

MR WILD:  Yes. I might say that we do not by any means say

this legislation is perfect, perhaps never was

perfect, but we say that the words are clear enough

as far as these particular offences are concerned.

I am reminded of the offence of false imprisonment

which still, apparently, has not received

legislative attention as far as a maximum penalty
is concerned, Your Honour, and any other common law

offences that are suggested - there may be a few of those left over despite the gradual codification of the common law within the Crimes Act.

The other matter which is the forefront of

what we put is this, that the legislature intended,
as a general rule that the offences, the
substantive offences which were represented by the

incitement or the conspiracy, would have as

maximums available for sentencing purposes, an

equivalent - the equivalent maximum of the
substantive offence.	I take Your Honours if I may

to the materials which have been provided in that

respect and, in particular, to page 2 of the

material which is the report of the Criminal Law

Working Group on Incitement. I have provided

page 2, merely the front sheet of the document, so

that Your Honours can identify the source of the

report to which I refer. I have only provided

extracts of these documents, the full report is

available, at least one copy if Your Honours need

to see it.

This is a report to the Attorney-General in

November 1983 on the Criminal Law Working Group

Crimes (Incitement) Bill 1983. The report was

Dimozantos(2) 25 31/8/92

prepared by Professor Waller as the chairman,

Dr T. w. Smith, Judge Mullaly of the County Court

and Mr Brett of the bar. It dealt with penalties

at page 10 and 11 of the report itself and I have

provided those for you as extracts, page 3 and 4,

and you will see these are recommendations, of

course, only from the working par.ty and if I take

Your Honours to about a third of the way down:

The penalties which the Working Group

recommends are (as in the case of

conspiracy) -

which they had reported on separately -

maximum penalties and it may be expected that

the maximum penalties will only very rarely be

imposed.

They then go on to pose the following

penalties for the new statutory offences:

(a) where the penalty for the for the
substantive offence is fixed by law, the
maximum penalty for incitement should be

imprisonment for 20 years.

And the Court will note straight away that that

recommendation was not adopted by the Parliament. Parliament, in fact, replaced that by the section

that we have is subsection (a), the penalty is

fixed by law not exceeding the penalty, and we will

see from the second reading speech that that was

intended to be the life imprisonment penalty for

murder, and (b) provides the 15 year penalty for

cases where the substantive offence is at large, not identified as such, but regarded as being in existence and then, (c) where a maximum penalty is

prescribed the maximum penalty should be the same.

DAWSON J: What is the difference between (a) and (c)?
MR WILD:	Between (a) and (c), Your Honour?

DAWSON J: Yes.

MR WILD: Well, (a) uses the word: "fixed by law" and the

explanation for that is contained in paragraph 31

of the report which immediately follows - - -

DAWSON J:	I see, yes.
MR WILD:	- - - and in fact, it is fair to say the committee

is wrong when they say that the committee is wrong

when they say that murder was the only offence

where there was a penalty fixed by law because they

did not turn their minds to treason or piracy which

Dimozantos(2) 26 31/8/92

were then in existence and provided the same

penalties which were also mandatory at the time.

The Court will also see that the offence of incitement to murder, as it then was, carried only

10 years, so, even on their recommendation, there

was to be an increase to 20 years.

Now, Your Honours, if I then take you to

page 5 of the materials. This is the second

reading speech of the Attorney-General in the

Legislative Council on 21 March 1984. At page 1931

he identifies the report that I have just referred

you to. If I then take you over to page 7 of the

materials, page 1933, under the heading of

Penalties for Conspiracy - I have to explain to

Your Honours that the bills for the new Acts, the

new offences of conspiracy and incitement contained

in separate bills but at the same time - one bill,

I am sorry, but containing amendments at the same

time. Under Penalties for Conspiracy:

The Bill adopts a general approach that

the penalty for conspiring to commit an
offence in Victoria should be no greater than
the penalty for actually committing the

offence itself. At present, as conspiracy is

a common law offence, for which no penalty is

prescribed by legislation, the penalty is at

large; that is, the penalty imposed may be

anything up to and including imprisonment for

life -

that is a significant expression used, we would

suggest, acknowledging, at least in the

Parliament's mind, that was the maximum penalty to

be fixed. It goes on to say:

The Bill adopts the approach that where the

penalty for the relevant offence is fixed by

law, that is, a mandatory penalty is fixed,

the offence is to be the same as the penalty	the maximum penalty for conspiracy to commit
fixed by law, except that it will be a maximum penalty and not a mandatory penalty.

Then it provides for 15 years, et cetera.

On the next page, page 8 of the materials,

page 1934, he deals with the common law incitement

penalties:

is presently at large .•.•• The working group

considered that the penalties for conspiracy

and incitement ought to be the same. The Bill

therefore adopts provisions for penalties in

Dimozantos(2) 27 31/8/92

relation to incitement along the same

principles -

Your Honours, the matter was then debated and the
spokesman for the Opposition was

Mr Haddon Storey, QC, where at page 2012, page 12

of the materials, in the second column, he dealt

with the penalties matter in these terms, near the

bottom of the page:

The recommendation of the committee and

the one embraced wholeheartedly by the

Attorney-General is that the offence for

conspiracy to commit murder should be raised

from ten years to the maximum penalty of life.

The principle guiding the Attorney-General on

this matter is sensible and the Opposition

agrees with that provision.

Once again, for what it is worth, there is an

expression of the "maximacy" of the imprisonment
for life penalty and although it is not stated in

those exact terms by the Attorney-General in his

second reading speech, it is apparently accepted as

the recommendations contained in it.

Very quickly, there is then a reference to

this in the Legislative Assembly in the second

reading speech in that House presented by

Mr Fordham, page 15 of the materials, page 3546 of

the Hansard Debates, in the second column:

In relation to incitement, there was a

range of statutory penalties. It has been

decided, therefore, that the penalties should

be the same for conspiracy and incitement and

that maximum penalties should be laid down for

both to ensure, in particular, that the

maximum penalty for a conspiracy or incitement

is no more than the maximum penalty which may

be imposed for the commission of the

substantive offence or offences.

Now, if we go back to the starting point, and

if it be accepted that the maximum penalty for

murder, the substantive offence of murder, is life imprisonment - I know it begs the question to some

extent - then it is clear what Parliament, at

least, intended to be the case.

Your Honours, I have provided in the materials the Act itself which was passed. I do not think I

need trouble you with that except in passing to say that section 321C is the equivalent section dealing

with the offence of conspiracy setting out the

penalties and if you would care to look at that and

compare what follows at page 20 of the materials,

Dimozantos(2) 28 31/8/92

section 322(1), which is the one we are concerned

with today, you will see that they are identical in

relation to those matters.

BRENNAN J: Where does this take us, because this was 1984,

was it not?

MR WILD:  Yes, Your Honour.

BRENNAN J: It was 1986 that section 3 was changed.

MR WILD:  Yes.

BRENNAN J: So that even if it was Parliament's intention in

1984 that it should have been life imprisonment for

incitement to murder, one cannot predicate that of the continuing intention in 1986 when they changed the murder provision.

MR WILD:  I think, with respect, we can, Your Honour,

because of the course I will take you through, and

I will try and do it as expeditiously as I can. I

have provided other material there setting out at

page 23 the original penalty - my learned friend

has taken you through this - for murder in

Victoria; altered in 1975, as my learned friend

says. I have provided at pages 25 to 28 the

sections that deal with the 1980 introduction of

the piracy and treason penalties in similar terms

and then at page 29 of the materials we come to the

section that Your Honour Mr Justice Brennan just

referred me to, which is the amending section.

Now, Your Honour, if - we will just look at

the purposes of the Act, which appear at page 29 of
the materials, of the Crimes (Amendment) Act 1986.

It dealt with two matters, one was in relation to

unsworn statements which we need not bother at this

time. Subsection l(b) says that one of the

purposes of the Act was:

persons convicted of murder and other offences	to give courts discretion in the sentencing of	for which a mandatory sentence of life
imprisonment must now be imposed.

We then find the new section as section 8 of the

amending Act in the terms that the Court has

already looked at. There are also amendments to

the piracy and treason sections which we need not

trouble with.

I take the Court to page 32 of the materials.

This is the second reading speech, again by

Mr Kennan, as Attorney-General, and this is at

page 292 of the Legislative Council Hansard

Reports, 26 March 1986. He states the purposes as

Dimozantos(2) 29 31/8/92

I have just read them to you at page 32, part (b),

the same terms. And if I take the Court to the

next page, page 33, the sentence for murder under

the heading The Sentence for Murder:

Until 1979 Victorian law prescribed death

as punishment for murder. Since that time the

penalty for murder has been a mandatory

sentence of life imprisonment. The first such

sentence was imposed on 2 June 1975. The next paragraph:

The mandatory sentence has been the

subject of sustained criticism in Australia

and elsewhere, because of its absolute nature

and its indeterminacy.

That is the matter my learned friend complains

about.

Effectively a life sentence means

incarceration for an indeterminate period.

We accept that as an expression of opinion and accurate words.

In September 1985 the Law Reform

Commission released its report No 1 which

reviews the law concerning the sentence for

murder.

And my learned friend has already pointed out to

the Court that in fact there were similar

recommendations to these much earlier but which did
not find their way into the 1975 amendments to the

penalty for murder.

Now, what the honourable Attorney said here

was this, the:

maximum penalty for murder should remain as

life imprisonment but judges should have a

discretion to set a fixed term of imprisonment

in appropriate cases.

"maximum penalty for murder should remain as life

imprisonment". At the bottom of the page:

The Government accepts these

recommendations and Part 3 of the Bill

implements them. Its principal features are

that:

1. Section 3 of the Crimes Act 1958 is

amended to provide that a person convicted of

murder, is liable to imprisonment for a

Dimozantos(2) 30 31/8/92

maximum period of the term of his or her

natural life.

2. The judge imposing a sentence for murder,

whether a term of years or a life sentence,

may at the same time fix a non-parole period -

et cetera. It is clear, in our submission, that

the court in 1986, at least as far as the offence
of murder was concerned, regarded the life sentence

as the maximum available. It is clear from the

whole history of this matter, with respect, that

the court was not looking to impose as a secondary

discretion to the judge an imposition of a greater

penalty, but a lesser penalty than the maximum

which the law provided.

Now, as we said in paragraph 4 of our outline,

on the face of it, these amendments left

section 321I(a) with no application, and we state

that it remains arguable that the penalty for

murder is fixed as life imprisonment but with an

accompanying discretion, and we do not wish to

argue that before the Court today.	But we believe
an argument could be mounted.

As I said earlier in our argument, it may well

be that subsection (a) never had any real meaning

if our learned friend's arguments are correct in

that life imprisonment, when it was fixed as the
mandatory penalty for murder, because of its

indeterminacy, was in fact not even then a maximum

in the terms used or could be one that a court

could look to as being the maximum available.

We refer, Your Honours, to the case of

Schultz, (1976) VR, which my learned friend has

already referred you to. In some of these

instances I think he has relied upon not only the

same cases but the same paragraphs of the cases.

MASON CJ: Well, you do not need to refer to it then.
MR WILD:	I have to put a different slant on it,

Your Honour. I am not looking to take up

Your Honours' time with this but what I was about

to put, Your Honour, was my learned friend puts

various points to the Court but asks you to

interpret the words one way and I ask you to
interpret them the other way. But, in particular,

in Schultz's case - it is a short matter I wanted

to take you to - on page 327 there is reference

there by the Court of Criminal Appeal to an

examination of English statues undertaken by

Mr Justice Jenkinson in an earlier case and at

line 31, following his examination of those cases,

he is cited as saying:

Dimozantos(2) 31 31/8/92

The phrases "for life" and "for the term of

his (or her) natural life" have for the last
two centuries been, so far as I am aware, the

only statutory modes in England and Victoria
of expressing the greatest possible duration

of imprisonment or transportation.

Now, it is our submission that it is clear that the

court has always regarded life imprisonment as the

maximum. I think, in fairness, having prepared

this argument, it has become clear during my

learned friend's argument that he really does

accept that as a proposition.

MASON CJ: Yes.

MR WILD:  Your Honours, we make the submission in our

outline there is no lengthier sentence known to the

law than a life sentence, except in the multiple

life sentences of the kind imposed by USA courts.

Now, I wanted to quickly take you to some other

jurisdictions where there is authority for the

proposition that life imprisonment can be regarded

as a maximum in terms of the maximum length, in

other words, the argument that our learned friend
puts to the Court.

If I take Your Honours to page 44 of the materials there is contained there an extract from

the New South Wales Crimes Act. It does not bear

that heading at the top - Crimes Act 1900 - but it

is the New South Wales Crimes Act. Section 19A: (1) A person who commits the crime of murder

is liable to penal servitude for life.

(2) A person sentenced to penal servitude for

life for the crime of murder is to serve that

sentence for the term of the person's natural

life.

(3) Nothing in this section affects the

operation of section 442 (which authorizes the
passing of a lesser sentence than penal

servitude for life).

Now, Your Honours, that must mean that the lesser

sentence is lesser in length of time as well, not

just a lesser penalty.

My learned friend has already referred to

Veen's case. I wanted to take Your Honours to two

short extracts from that case. They are different

from the ones that my learned friend referred you

to. Firstly, at page 462 - this is a short

expression in the judgment of His Honour

Dimozantos(2) 32 31/8/92

Mr Justice Stephen, as he was - the second paragraph at the top of the page:

The full severity of the sentence passed

on this man of twenty lies, then, not merely

in the fact that it is a sentence of life

imprisonment, the most severe sentence which

may now be imposed in New South Wales, treason

and piracy apart, but that -

et cetera. And then, again, His Honour

Mr Justice Jacobs said something similar at

page 490, at the top of the page:

The killing was undoubtedly a very grave

crime; but the question is whether it was a
crime which warranted not only severe
punishment but the most severe punishment which
could be awarded.

I have not taken Your Honours to the detail of the case but that was a sentence of life imprisonment

imposed there where the Court did have the powers

under section 19A to impose a lesser sentence if

they so thought.

I have provided for you some extracts from the Commonwealth Crimes Act which appear at page 46 and

following. There is a reference to section 4E in

the outline, that should be D. I apologize for

that. That section provides, effectively, that the

penalties which appear at the foot of sections

through the Act are to be regarded as maximum

penalties. It does not use the word "maximum". If

you look at section 4D(l), that is the effect of

it. And then I will just take you to the sections

that we have referred to in the outline:

,section 24(1) which appears at page 49, that is the

Commonwealth offence of treason. It provides for,

under subsection (1), the death penalty;

subsection (2), imprisonment for life. The penalty

set out is: 

Penalty: Imprisonment for life.

And that is regarded as the maximum penalty under

that section. If we go to section 24AA which

appears at pages 49 and 50 of the materials, again: Penalty: Imprisonment for life.

is the penalty provided, and the same with

section 25, section 26, which appear at page 52.

There is a reference which we provided for you from

Fox and Freiberg, Sentencing - sentencing law in

Victoria, paragraph 9.214, which appears at page 54

and 55, the last words on page 54:

Dimozantos(2) 33 31/8/92

But, unlike other jurisdictions -

they are talking about Victoria -

there are no offences for which the life

sentence is available as a discretionary

maximum.

That was prior to the amendment of section 3. This

was where it was written in 1984 or 1985.

My learned friend has referred to the decision

in Stone's case. As I understand his argument, he

does not rely upon it as an authority on the

meaning of section 321!. In so far as he does, we

refer the Court to what the Court of Criminal

Appeal, in this case, said at page 95 of the appeal

book, where the Court of Criminal Appeal disavowed

the argument that was put at some stage by my

learned friend's predecessor, to the effect it was

a decision upon the meaning. The Court of Criminal

Appeal, in dealing with it at page 95, indicated

that Stone's case was not the correct statement, in

so far as it was said to deal with section 321.

The matters that appear in paragraph 8 of the

outline really I have dealt with in the course of

our argument already. As I said at the outset, my

learned friend's argument really depends upon the
indeterminacy argument, and somehow, therefore,

making the life sentence otherwise applicable to be

one which is no longer to be regarded as a maximum

because of the indeterminacy. There is nothing

more I need to say, with respect, on that argument.

I will not bother the Court with the matter

eet out in paragraph 9 of the outline at this time.

Your Honours, my learned friend has touched upon

the new sentencing regime in Victoria, which is

something that we have drawn the Court's attention
to in our submissions.	I have sought some

instructions while--! have been on my feet as to the

matter that was r~ised just before my learned
friend resumed his seat in respect of what will

apply if this case is remitted to the court below

for reassessment. I am not sure that we have got a

final view about it at this stage. Section 117(4)

of the Sentencing Act 1991 provides that:

For the purposes of this section a sentence

imposed by an appellate court after the

commencement of this section on setting aside

a sentencing order made before that

commencement must be taken to have been

imposed at the time the original sentencing

order was made.

Dimozantos(2) 34 31/8/92

So, without researching it further, that seems to

indicate that the regime that this Court finds as the appropriate sentencing regime will be the one

that applies, rather than the reduced penalty that

will flow from these amendments.

The special point about the new sentencing

regime set out is that Parliament has now reduced -

for the future at least - in respect of the offence

of incitement to murder, if our learned friend's

arguments are correct, the maximum penalty as a

level seven imprisonment, using the new

terminology, which is a 60-month term of

imprisonment. We would submit that that cannot be

what Parliament had in mind. They have not

addressed the matter as far as we are aware in

terms. Your Honour Mr Justice Brennan asked me if

Parliament had changed its mind; of course it can,

but there is nothing to indicate it has, and the

whole course of the legislation over this period is

consistent, we would say, with the Parliament still

intending that subsection (a) applies, even though

on the argument my learned friend puts, and the

argument accepted by the Court of Criminal Appeal,

subsection (a) has no applicability. Even prior to

this Act, this Act coming into effect, so

nevertheless, we would say subsection (c) catches

the offence of incitement to murder, as at the time

it was committed and is clear enough in its terms.

Those are our submissions.

MASON CJ: Thank you Mr Wild. Yes, Mr Weinberg.

MR WEINBERG:  If it pleases, we reiterate our submission and

we do say, in the light of the fact that our friend

has contended that the maximum penalty that can be

awarded, or imposed, is a penalty of life

imprisonment or imprisonment for the term of one's

natural life; that has never been disputed during

the course of this application. We readily concede

that it is entirely meaningful to speak of that

being the maximum penalty. But our friend, with

respect, has not addressed the gist of our

submission which is that we are focusing on the

words in paragraph (b), "maximum length of which is

not prescribed by law".

We did not endeavour to seduce the Court into

anything, but we did endeavour to submit that upon

a proper construction of paragraphs (b) and (c),
one does not start with (c), one only gets to (c)

after one has eliminated (a), (b) and (d) because

of the words "subject to" that appear at the head of paragraph (c) and my friend seemed to indicate

to the Court that one could go directly to (c),

find that the sentence for murder falls squarely

within (c) and that is the end of the matter. That

Dimozantos(2) 35 31/8/92

would be quite wrong, in our respectful submission,

because it is perfectly possible that a sentence could fall both within (b) and (c), they are not the direct antithesis of each other; (c) speaks of

"maximum penalty" which is wider; (d) speaks of
"maximum length of which is not prescribed by law".

So the mere fact that the sentence for murder

falls within (c), as it may, does not mean that our

argument is not correct, but it falls within (b)

and is therefore intercepted at that point.

We simply reject our friend's contention that

there is any vestigial possibility of using

paragraph (a). He submitted that our argument might lead to the conclusion that because life imprisonment was indeterminate therefore it never

fell within paragraph (a), that is not the case at

all. We say it was indeterminate, but fixed by law

and because it was fixed by law paragraph (a)

picked it up and it picked it up between 1984 and

1986 and we readily concede that what Parliament
had achieved, for whatever reasons Parliament may

have had, was to make the maximum penalty for

incitement to murder, imprisonment for a term of

natural life between the years 1984 and 1986, but we say when the penalty for murder was changed in

1986 the penalty for incitement to murder altered,

and it did so as a result of the construction of

the provisions that Parlaiment did not attend to in

particular in section 321I(b).

We note that our friend prefaced his

submissions about other legislation by saying that

they would throw light on the meaning of the words

"maximum length", none of them did. None of them

used the expression "maximum length". The

references to "maximum penalty" or "maximum

sentence" or "most severe penalty" or whatever
simply do not come close to addressing our argument

which turns on the words "maximum length prescribed

by law".

Our friend, in answer to Your Honour

Justice Gaudron's question raised the possibility

of common law offences. We do not think there are

any common law offences left in Victoria that would

fall within paragraph (b). We understand that my

friend has raised false imprisonment. We would want to research that one. Perhaps we might be given leave to submit to the Court an additional

memorandum on the question of whether there are

common law offences left in Victoria which might

attract paragraph (b). If the Court were minded to

grant each side permission to do that on that

limited basis, that might be - - -

Dimozantos(2) 36 31/8/92

MASON CJ: Yes, if you could do that as quickly as possible,

Mr Weinberg.

MR WEINBERG:  Certainly, Your Honour. We will do that

within a week. But certainly the traditional

common law offences of - the inchoate offences -

conspiracy, incitement and attempt are now

statutory offences, they are not common law at all.

Your Honours, I do not think there is anything

that we can add, apart from those matters. True it

is that Mr Justice Stephen in Veen referred to the

most severe sentence, or the maximum sentence;
again that is consistent with our submissions to

the Court. Those are the matters in reply, if the

Court pleases.

MASON CJ: Thank you, Mr Weinberg. The Court will consider

its decision in this matter.

MR WEINBERG: If the Court pleases.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

Dimozantos(2) 37 31/8/92