Dimozantos v The Queen

[1992] HCATrans 72

..

• 'I

• JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M55 of 1991

B e t w e e n -

ANGELO STEPHEN DIMOZANTOS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 12 MARCH 1992, AT 3.14 PM

Copyright in the High Court of Australia

Dimozanto 1 12/3/92

MR M. WEINBERG, QC: If the Court pleases, in this matter I

appear, together with my learned friend,

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

(instructed by Valos Black & Associates)

MR R.S.L. WILD, QC: If the Court pleases, I appear with my

learned friend, MS E.H. CURTAIN, for the Crown.

(instructed by J. Buckley, Solicitor to the

Director of Public Prosections (Victoria))

MASON CJ: Yes, Mr Weinberg?

MR WEINBERG:  If the Court pleases, could we hand to the

Court outlines of our submissions and also three

folders containing again the statutory material

that we will be referring the Court to.

MASON CJ:  Why are your submissions presented on sentence

first and conviction second?

MR WEINBERG:  Your Honour, we have done that because the

Court of Criminal Appeal dealt with the sentence

point so perfunctorily that we thought it necessary

to draw the Court's attention to the fact that

there really is a live point, an important point,

of principle in relation to the question of
sentence, and the conviction point is already set
out, the competing arguments are virtually fully

set out, and we did not think it was necessary to

say very much about that. It is illogical in one

sense, Your Honour, but we think it is more

convenient to take the Court initially to the
sentence point for that reason. Perhaps if the

Court were to confine its reading of the material

to the sentence argument at this stage, that would

be quite sufficient for our purposes.

If the Court pleases, the offence of

incitement is as old an offence as any known to the

criminal law, perhaps short of murder.	We found
traces of it going back certainly to the 13th

century, Your Honours, but at no time in the

history of that offence in any common law

jurisdiction that we have discovered has the

penalty for incitement to murder been equated with

murder.

In the present case, the Court of Criminal

Appeal has held the penalty for incitement to
murder in Victoria is the same penalty as is

available in relation to the offence of murder.

That is the starting point of our submissions. It

is not, it has not been since 1986, and it never

was, the same penalty, in our respectful

submission.

Dimozantos 2 12/3/92

The applicant was sentenced to a term of

12 years with a minimum of 10 years upon the
express basis that the maximum penalty for this

offence was imprisonment for the term of natural

life or such other term as a judge might determine.

Page 31 of the application book makes that clear,

if we could start with that proposition. His

Honour at page 31, in sentencing the applicant,

said this at about point 5:

It is necessary for me to take into account

that although this offence has some similarity

to an "attempt", the legislature has seen fit

to prescribe a lower penalty for attempted
murder, namely, a maximum penalty of 15 years.

It may well be anomalous. However, I am bound by law to pass sentence by reference to the

maximum penalty which on my understanding the

legislature has here provided, namely, life

imprisonment.

His Honour imposed sentence upon that basis. The

Court of Criminal Appeal was invited to conclude

that His Honour had erred and that the maximum

penalty available for incitement to murder in

Victoria was either 15 years or, alternatively, two

years, upon a different interpretation of the

legislation. We do not suggest that it is two

years, but we do suggest that it is 15 years.

We say the point is important and of general

application because it involves not merely the

penalty for incitement to murder, but also the

penalty for conspiracy to murder, both offences

which in Victoria are contained within the Crimes

Act, codification enacted in, I think, 1984 when

incitement and conspiracy were rendered statutory offences in Victoria rather than being common law offences.

We say the point is of importance because

Parliament has laid down what the maximum penalty for this offence is, and if the Court of Criminal

Appeal has said it is something other than what

Parliament has laid down to the detriment of this

applicant, that is a matter that warrants the grant

of special leave, in our respectful submission.

The matter arises this way: Victoria has a

very peculiar way of dealing with people who are
convicted of murder. If the Court turns to the

materials that we have handed to the Court, the

Court will see in tab 1 the penalty for murder in

Victoria. It provides as follows:

Dimozantos 12/3/92

Notwithstanding any rule of law to the

contrary, a person convicted of murder is

liable to 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.

One might think that is a fairly extraordinary way

of drafting a penalty provision, but the

explanation lies in the fact that prior to 1986, it

was only the first part of that section which was

in force. In other words, the section as it

existed before 1986 simply provided for

imprisonment for the term of his or her natural

life, and that had been construed as giving a judge

no sentencing discretion whatever. It was in fact

the fixed term or the term fixed by law for murder.

In 1986 it was desired to give sentencing judges a

discretion in relation to murder, so paragraph (b)

was tacked on.

But that had an inevitable consequence, in our

respectful submission, and the inevitable

consequence was that, unlike the position prior to

1986 when the maximum penalty for incitement to

murder was the same as the fixed penalty for murder

which had existed prior to that date, the

introduction of this new provision took it into a
new category for the purposes of sentencing.

If I may explain how that works: the penalty for incitement to murder is set out in section 321I

which is contained in the materials, I hope.

DAWSON J: Page 51 of the application book.

MR WEINBERG:  It is in the application book. I am grateful

for that, Your Honour. The Court will see that

that provides for four different kinds of penalty for incitement. Paragraph (d) has no application

whatever to these proceedings nor, we say, does

paragraph (a). Section 321I provides:

Where a person is convicted under section 321G

of incitement to commit an offence or offences

against a law or laws in force in Victoria -

(a) if the penalty for the relevant offence

is fixed by law, the person shall be liable to

a penalty not exceeding the penalty for the

relevant offence.

Dimozantos 12/3/92

That was very simple. That was the position prior

to 1986 because the penalty for murder was fixed by law and it was natural life. It is no longer fixed

by law. There is no longer any offence which we

are aware of where the penalty is fixed by law in

Victoria.	The concept is simply not being applied
at the moment.	Even treason carries the same form

of sentencing as does murder.

One then goes to paragraph (b) which, we

submit, is in fact the paragraph which governs

incitement to murder now since 1986. Paragraph (b)

says:

(b) 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 -

and that is the key expression -

the person shall be liable to imprisonment for

a term of not more than fifteen years.

One then goes to paragraph (c) and notes

immediately that that is preceded or commences with

the expression -

subject to paragraphs (a), (b) and (d), if the
relevant offence, or any of the relevant
offences is an offence for which a maximum

penalty is prescribed by law, the person shall

be liable to a penalty not exceeding that

maximum penalty or the accumulated maximum

penalties, as the case may be.

Both the trial judge and the Court of Criminal

Appeal agreed that paragraph (a) was not applicable

to incitement to murder. Both of them then, it

seems, went to paragraph (c) and said that was the

that that was how the maximum for incitement to	applicable provision and came to the conclusion
murder happens to be life imprisonment. Our
submission is it is not. One does not get to
paragraph (c) because paragraph (c) is subject to
(b) and incitement to murder is caught by
paragraph (b), and the same applies to conspiracy
to murder, in our respectful submission, which has
the same kind of sentencing regime.

The way the argument works is this: if one

looks, as one must, at the penalty for murder and

returns to section 3, one sees that, in effect, it

can be read either disjunctively, that is, that

there are two penalties available or two sentencing

options available to a sentencing judge.	He may
either sentence the prisoner:

Dimozantos 12/3/92

to imprisonment -

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

or -

he may sentence him -

for such other term as is fixed by the court -

as the court determines.

If one goes to paragraph (b), that plainly, in our

submission, falls within section 321I(b) because

that is plainly a penalty for an offence for which

the maximum penalty is imprisonment for a term, the

maximum length of which is not prescribed by law.

If a judge can impose any penalty he likes in terms

of imprisonment from one year to 1000 years, as

paragraph (b) seems to suggest, then, in our

submission, that is a penalty, the maximum length

of which is not prescribed by law. I am sorry to

use the double negatives, Your Honours, but the

drafting is difficult.

If one then goes back to paragraph (a), "for

the term of his or her natural life", that is a
fixed penalty taken in isolation as one of two
options. It also is not a penalty, the maximum
length of which is prescribed by law - or, rather,

it is a penalty, the maximum length of which is not

prescribed by law because there is no maximum

length.

DAWSON J:  Why do you read the two paragraphs that way

though?

MR WEINBERG:  I do not have to, Your Honour. I can read it

that way or, as an entity, we say either way we

come to paragraph (b). ·

DAWSON J: The drafting mechanism you have explained might

have done it that way but the effect of section 3

is that the sentencing judge can impose any

sentence of imprisonment up to but not beyond the

term of his natural life.

MR WEINBERG:  No sentence can ever be beyond a person's

natural life, Your Honour.

DAWSON J: Well, I know that. The maximum is not only

prescribed by law but also by - - -

MR WEINBERG: Other matters.

DAWSON J: Yes, natural events.

Dimozantos	6	12/3/92
MR WEINBERG:	Prescribed by God.	The sentence, of course,

terminates upon the death of a prisoner. So, what

we say, Your Honours, is that if one reads it

holistically, if one reads it as a whole, what it

is saying is that a judge can impose any sentence

that he likes. It does not need to say "up to the

end of one's natural life" or "for the term of

one's natural life." The latter part:

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

court -

would allow that as well. There is really a

tautology contained within the section.

So, what we say is whether one reads it

disjunctively, which means that you look at it as

two options, neither of which constitute a penalty,

the maximum length of which is fixed by law, or

whether one reads it in its entirety, it simply is

a penalty, the maximum length of which is not fixed

by law, and if that is so, then it is

paragraph (b), and there is nothing illogical about

that.

It makes very good sense, with respect, we

say, because we have a perverse situation at the

moment in Victoria. A person convicted of

incitement to murder or conspiracy to murder who

then goes on to attempt the murder, to carry it out

in league with the person incited or in league with

his co-conspirator, and just fails, finds his

culpability reduced because the penalty for

attempted murder is actually 15 years, and that is

bizarre, we say, with respect.

It may be what Parliament intended but there

is no particular reason why Parliament should have

intended that kind of result to flow. Incitement

has never been regarded as anything other than a

common law misdemeanor. It was never a felony,	historically, incitement to murder. Attempted
murder was always a felony. So, there was always a
huge gap between attempt, which was the most
heinous of the inchoate offence in gradation, and
one came down from that to conspiracy, which was a misdemeanor, and incitement which was a misdemeanor. Attempted murder carried the death
penalty for hundreds of years and here we find a decision of this Court which, in effect, overturns
all that and creates a life sentence for incitement
to murder. Not only that, but it has done
something about the relationship between incitement
to murder and murder which is quite different from
what happened in 1984 when this provision was first enacted.

Dimozantos 7 12/3/92

In 1984 the maximum penalty for incitement to

murder was the same as the fixed penalty or the

penalty for murder. In other words, they were not precisely equated. It was the maximum penalty for incitement to murder which was equal to the fixed

penalty for murder. What has happened is the

penalty for murder has arguably been reduced in

1986 and we say that had consequential effects

because it took the case out of paragraph (a) and

into paragraph (b) as a matter of construction, and

if that is so then the relationship between

incitement to murder and murder is not complete
parity or equality, as the Court of Criminal Appeal

has held but, rather, one of subservience to a

dominant sentence, if one wishes to put it that

way.

It is a very simple point, in a sense, if one

ignores the double negatives but we say it is

right, and if it is right the applicant has

suffered a miscarriage of justice because he has

been sentenced upon an erroneous footing. It is

not for judges or the courts to fix maximum
sentences, it is for Parliament to do so and if

Parliament has done so and said it is 15 years

through this ambulatory change in the law of

sentencing in relation to murder, the applicant, in

our submission, has been wrongly and unlawfully

sentenced. And that is really the sentence point.

If one turns to the conviction point - we said

that we were going to deal with that second, not
because we say that there is any less merit in it,

but because this one needed greater exposition. It is a very simple point again, the conviction point.

It was stated below, and perhaps we could just deal

with one or two errors that we say the Court of

Criminal Appeal made in dismissing the argument,

and they are pretty fundamental errors, in our

respectful submission.

So far as section 321G is concerned, if

Your Honours thought that section 464C and 464H

left something to be desired in terms of the

drafting, we are anxious to hear what Your Honours

say about section 321G because this is a nightmare.

The section says, in terms - and these are set out

at page 42 of the application book.

321G(l) Subject to this Act, where a person

in Victoria or elsewhere incites any other

person to pursue a course of conduct which

will -

and we emphasize the word "will" -

involve the commission of an offence by -

Dimozantos 12/3/92

(a) the person incited;

(b) the inciter; or

(c) both the inciter and the person incited -

if the inciting is acted on in accordance with the inciter's intention, the inciter is guilty of the indictable offence of incitement.

And if I had wanted to be seductive in my advocacy,

I would has emphasized the word "if":

if the inciting is acted on in accordance with

the inciter's intention -

Now, the Court of Criminal Appeal was

confronted with an argument as was His Honour that

this is a codification; it is a new provision. It

is not the old common law offence of incitement,

and the court was confronted with an argument that

it changes - it has changed the old common law

elements. It plainly has done that in certain

common law having been that one could not incite

respects. It has done it by subsection (3).

the impossible. That has now been statutorily
changed, so there is a complete change there.

We say there has been a complete change in terms of the elements of the actus reus of this

offence of incitement such that the person incited
must, in the language of the statute, act on the

incitement in accordance with the inciter's

intention. The Court of Criminal Appeal rejected

that submission because it said, "Well, if he is

acting on the incitement with the inciter's

intention, he is committing the offence, and if he

is committing the offence he is not inciting, he is

actually in complicity with the person who has

committed the offence." We say that is wrong. We	say that one can give a perfectly sensible meaning
to the words "acted on in accordance with the inciter's intention" by something short of actually carrying out the completed criminal offence.

What the section does, in our submission, is

to require more than the mere intentional words of

incitement to be uttered and overhead but to be

taken sufficiently seriously by the person incited
to move him to act upon them in accordance with the

intention of the inciter. So that if, for example,

X were to incite Y to fetch a gun and go and shoot

z, if Y did nothing at all, we say the offence

under section 321 is not committed, but if Y moves

in the direction of committing the actual offence,

in other words, the incitement is taken

Dimozantos 9 12/3/92

sufficiently seriously by Y to make him act upon it

in accordance with the inciter's intention, the

offence is actually committed at that point, and

that is a matter for the jury as to when that has

been sufficiently done by the person incited.

DAWSON J:  It is really a question of whether you read the

words "if the inciting is acted on in accordance
with the inciter's intention" as indicating the

subjunctive mood - - -

MR WEINBERG: That is right, Your Honour, we say that, in

our submission.

DAWSON J:  And if it did, it sould use the words "were acted

on" if it were acted on.

MR WEINBERG:  Your Honours, we say in paragraph 18 of our

outline and paragraph 17. Perhaps I will just take

Your Honours to those two paragraphs of our

submission and that would complete my argument,

virtually, on this point.	We say there is
ambiguity within section 321G.	The trial judge and

the Court of Criminal Appeal construed the section

as though it read as follows:

Subject to this Act, where a person in
Victoria or elsewhere incites any person to

pursue a course of conduct which, if it were

to be acted upon in accordance with the

inciter's intention would involve the

commission of an offence by -

that is the subjunctive mood the court has

redrafted the provision to achieve.

DAWSON J:	I do not think the people who draft Acts nowadays would know what the subjunctive mood was,
Mr Weinberg.

MR WEINBERG: If Your Honour pleases. Paragraph 18: the

difficulty is that the section says nothing of the

sort. It uses "will" and "is", not "would", or "if

it were to be". It is submitted that upon the

ordinary and natural construction of the words in
the section, there has been introduced into the

offence of incitement a new and additional element.

That new element is that "the inciting is acted on

in accordance with the inciter's intention". It is
to be noted particularly that the clause in

question is prefaced by the word "if". That word is ordinarily to be read as imposing a condition,

that is, introducing a new and additional element

into the offence, rather than as prefacing a

legislative excursion ungrammatically expressed

into the subjunctive mood.

Dimozantos 10 12/3/92

Now, that is taken as to the primary meaning

of the word "if" as taken from Fowler who says that is the primary meaning and it should not be used in

other ways because it creates ambiguity.	We say
that is exactly right.	We also say, in relation to

paragraph 19, that the applicant's argument might

well have been assisted had the order of the last

two clauses of section 321G(l) been reversed.	But
we say that such a process involves no more of a

rewriting or a reconstruction of section 321G than

that which has been effected by the Court of

Criminal Appeal. There is no difference at all

between saying "If you do your homework, you may

watch television" and saying "You may watch

television, if you do your homework".

I do not want to get into categories of

illusory reference or nonsensical distinctions, but

this Act is drafted in what can only be described

as a very strange way. There are two constructions

open, we say. It may or may not have been what

Parliament actually intended to achieve. Frankly, we do not care because the actual intention of

Parliament is of far less importance than the

intention to be extracted from the ordinary and

natural meaning of the words "as expressed by the

Parliament" and what the Court of Criminal Appeal

has done is to rewrite this section to introduce

words into the subjective mood and so forth. It

did it for two reasons: one, I have already dealt

with because it said the only meaning that could be

given to the words "acted on in accordance with the

inciter's intention" was the commission of the

whole offence. That is wrong. It can plainly be

given a meaning less than that. And the second

reason was that it said that one could not

reconcile the construction urged upon this Court by

the applicant with subsection (3), which is the

impossibility provision. Again, that is wrong,

with great respect, and obviously wrong, and we

demonstrate that in our paragraph 22 of our

submissions.

Paragraph 22 gives a perfectly clear example

of how one can have a requirement that one act upon

the incitement in accordance with the inciter's
intention but at the same time render the conduct

in question an offence, albeit impossible, and the

example that we give is X incites Y to murder z. Y

is to carry out the murder by shooting Z while he

is asleep. Y acts in accordance with the inciter's

intention by going to Z's house, and firing several

shots at Z while he is in his bed. Unbeknown to

both X and Y, Z has died in his sleep earlier than
night, prior to the incitement having occurred. In

these circumstances, Xis guilty of incitement to

murder, though he would not have been guilty of

Dimozantos 11 12/3/92

that offence at common law, because Y has acted on
the incitement in accordance with the inciter's

intention. The purpose of subsection (3) is to

prevent X from invoking the doctrine of

impossibility in these, and like circumstances.

So, the two bases upon which the court

rejected our preferred contention was simply wrong,

each of them. It then comes back to do we resolve

the ambiguity by grammatical construction and
looking at the place of a comma or do we, instead,
resolve the problem by saying there is an ambiguity

here, there is nothing illogical about the

applicant's contention that this is the meaning

that these words ordinarily and naturally bear and,

in conclusion, that that is the meaning which

should be accorded to the section.

There is no doubt that if that additional

element were required, it was not satisfied in this

case; no doubt at all. If the additional element

which we submit has to be proved, it was not

satisfied because the person incited in this case

happened to be a plainclothes policeman who did not

act upon the incitement. It was impossible to

commit the offence. But we say there is an

anterior basis for a complete acquittal. Now,

Your Honours, those are our submissions unless the

Court requires any further assistance from me at

this stage.

MASON CJ: Yes, thank you, Mr Weinberg. Now, Mr Wild, we do

not need to hear you on the conviction point, that

is, the interpretation of section 321G, but we do

need to hear you on the sentence point.

MR WILD:  Your Honours, I did have an outline but it deals

mainly with the conviction point.

MASON CJ: It is not going to be helpful then, is it?

MR WILD:  I do not think it will be terribly helpful on this

point. If something occurs to me during the course

of my submission that this will help you with, I

will hand it up.	I think it is unlikely, quite
frankly.

Your Honours, the history of the section that

my learned friend embarked on very briefly gives

the lie to some of the matters which he has put to

you and puts it in a somewhat different complexion.

to murder which was, as a

In 1984 when this section was introduced into the the offence of incitement

maximum, life imprisonment. Now, that is the

effect of the first subsection, subsection (a) of

the section we are dealing with.

Dimozantos 12 12/3/92

Now, that continued to be the case until the

legislation altered the penalty under section 3 for

the crime of murder and provided a basis for the

court being able to impose a lesser sentence than

that of life imprisonment. In fact, what the court

did was not to then decrease the penalty as such,
the maximum penalty provided for which was a fixed
penalty, but rather to allow some discretion within

that range. Nevertheless, the maximum penalty

applicable remained life imprisonment.

Now, I have heard the argument my learned

friend has presented in respect of that. There is
always the indetermination of a life sentence, of
course, but nevertheless it is effectively the
maximum sentence to which somebody can be sentence

and, in my submission and the submission that we

put before you, it is consistent with that that the

law still provides, under subsection (c) which is

the section we argue for, that the maximum penalty

is prescribed by that section and is a life

imprisonment.

DAWSON J: But he says it is not a maximum penalty

prescribed by law. It is a maximum penalty

prescribed by other powers.

MR WILD:  Yes, I heard him say that, Your Honour. But life

imprisonment· is the maximum penalty known to the

law.

DAWSON J: That is a different thing.

MR WILD: It is provided for in - well, originally, in

section 3, now section 3A, I think it is, of the

Crimes Act, as still one of the variables possible for the offence of murder. That still, we would

argue, is the offence which is similar to the

incitement and which subsection (c) is intending

shall be used as the basis for the penalty in this

offence, the offence that this man has been

convicted of.

The other matter which my learned friend

raises is the fact that attempted murder under
section 14 carries a lesser penalty, a penalty of

15 years. That is true. That was also the case in

1984 when the Parliament enacted this provision

which provided that the penalty for incitement to

murder would be increased from what it then was,

which was 10 years under the then section 4 of the and was made equivalent to the life sentence under the murder provisions, section 3.

So, Parliament certainly, by what it did in

1984, made it clear that it was equating,

Dimozantos 13 12/3/92

notwithstanding my learned friend's protest about
this, the offence of incitement to murder with the

offence of murder for penalty purposes, bearing in

mind that what the Parliament was saying is this is

the range of penalties that we want to be available
to the courts in dealing with people convicted with

this offence. They were not saying that people

convicted of incitement would be sentenced to life

imprisonment but that that would be the maximum,

and that was the way the section was worded.

Now, of course, in 1986, when section 3 was

altered, the effect of that was to give the court a

greater discretion in imposing sentences under

section 3 but it did not reduce the maximum that

was available in respect of the offence of murder.

Now, it is my submission that it is not

appropriate to say that subsection (c) bypasses
subsection (b), which my learned friend relies

upon, and say that because it is introduced by the
words "subject to paragraphs (a), (b) and (d)",
that you disregard what subsection (d) provides.

Whatt my learned friend argues, under

section 321L(b), if the relevant offence:

is an offence for which the penalty is

imprisonment for a term the maximum length of

which is not prescribed -

now, he has to get it within those words for his

argument to succeed. In my submission, the maximum

length is prescribed; as simple an argument as

that, I suppose, really, and the Court of Criminal

Appeal took the view that subsection (b) was not

the appropriate one.

My learned friend is right in saying there is

no reference to it in the argument which appears in

the judgment of the Full Court but, in fact, of

course, it was argued before the court, as my

learned friend has indicated, and the matter was

fully aired. So, the view that was taken was that

subsection (c) applied and not subsection (a), of
course, in the circumstances.

In my submission, the arguments are as simple as that. In my submission, there is a maximum term

available. It is not appropriate to look to what

might be the logic of having a similar penalty for

murder and incitement to murder and say that that

is ridiculous because, in fact, it was what

Parliament decided in 1984 they wanted and it might well be that if the draftsman looked more carefully at his legislation of 1986 when section 3 was

changed, something would then have been done about

Dimozantos 14 12/3/92

321L but, of course, it was not. So, we do not

know what the result of that may have been.

Those are the matters that I wanted to put in

respect of this aspect. If Your Honours please.

MASON CJ:  Thank you, Mr Wild. Do you wish to say anything

in reply, Mr Weinberg?

MR WEINBERG:  If I may, Your Honours. My learned friend has

referred to the maximum penalty which is the

language of paragraph (c) but he has ignored the

language of paragraph (b) which is "maximum length

of which is not prescribed by law" and it is those

words that we had focused on in our argument, and
we understand that our learned friend puts the

submission - perhaps I am doing him an injustice -

that after 1984 the penalty for incitement to

murder was the same as or equal to the penalty for

murder. It never was; it never has been. The

penalty for murder in 1984 was fixed and the

penalty for incitement to murder was a maximum of

life imprisonment. It is now the same penalty for

the first time in history, if we may put the matter

that way. If the Court pleases.

MASON CJ:  The Court is of opinion that the interpretation

placed by the Court of Criminal Appeal on the

provisions of section 321G of the Crimes Act 1958

is correct and, accordingly, the application, so

far as it relates to conviction, is refused.

However, the Court will grant special leave to

appeal on the question of sentence.

MR WEINBERG:	As Your Honours please.
AT 3.48 PM THE MATTER WAS ADJOURNED SINE DIE

Dimozantos 15 12/3/92