Dimozantos v The Queen (No 2)

[1993] HCA 52

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, TOOHEY AND GAUDRON JJ

DIMOZANTOS v. THE QUEEN (No. 2)

(1993) 178 CLR 122

22 September 1993

Criminal Law (Vict.)

Criminal Law (Vict.)—Sentence—Fairness—Incitement to commit offences—Maximum sentences—Statutory formula relating sentences to those for substantive crimes—Error by court about sentence applicable to incitement to murder—Sentence set aside by High Court—Remittal—Statutory amendment reducing maximum sentence—Reference by resentencing court to original sentence as explanation of amendment—Amendment enacted before but proclaimed after imposition of original sentence—Observation by resentencing court that amendment may have relevance to its sentence—Failure to say whether it had—Resentencing by High Court—Extraordinary circumstances—Crimes Act 1958 (Vict.), s. 321I(1).

Orders

Appeal allowed.

Set aside the sentence imposed by the Court of Criminal Appeal of Victoria. In lieu thereof order that the appellant be sentenced to imprisonment for a term of eight years with a minimum term of six years and two months before he is eligible for parole.
Note: By reason of s.117(4) of the Sentencing Act 1991, the provisions of the Penalties and Sentences Act 1985 apply to the sentence now imposed by the Court.

Decision

MASON CJ, BRENNAN, DEANE, TOOHEY AND GAUDRON JJ On 26 July 1991, the appellant was convicted, by a jury in the Supreme Court of Victoria, of the offence of incitement to murder. The learned trial judge (Marks J) sentenced him to be imprisoned for twelve years and directed that he serve a minimum term of ten years before becoming eligible for parole. On 7 October 1991, applications by the appellant for leave to appeal against conviction and sentence were refused by the Court of Criminal Appeal of Victoria. The appellant obtained special leave to appeal to this Court from the Court of Criminal Appeal's refusal of the application for leave to appeal against
sentence. On 7 October 1992, the appeal against sentence was unanimously allowed by this Court (Mason CJ, Brennan, Dawson, Gaudron and McHugh JJ) on the ground that both the learned sentencing judge and the members of the Court of Criminal Appeal had acted on the basis of a mistaken view of the maximum penalty for the offence of incitement to murder ((1) See Dimozantos v. The Queen (1992) 174 CLR 504.). It was ordered that, in lieu of the Court of Criminal Appeal's order dismissing the appellant's application for leave to appeal against sentence, the appellant be granted leave to appeal to that court against sentence, that the appeal be allowed, that the
sentence be quashed and that the appellant be remanded in custody to be sentenced according to law.

2. In due course, the appellant came before the Court of Criminal Appeal (Phillips CJ, Crockett and Fullagar JJ) for resentencing. On 17 December 1992, that court imposed a sentence of imprisonment for nine years with a minimum term of seven years before eligibility for parole. The present appeal to this Court, again brought by special leave, is from that sentence imposed by the Court of Criminal Appeal.

3. Section 321L of the Crimes Act 1958 (Vict.) ("the Crimes Act"), inserted by the Crimes (Conspiracy and Incitement) Act 1984 (Vict.), abolished the common law offence of incitement. In its place, s.321G, inserted by the same Act, created a statutory offence of incitement. Section 321I prescribed the penalties for that offence. Between its introduction in 1984 and the commencement of the Sentencing Act 1991 (Vict.) ("the Sentencing Act") on 22 April 1992, s.321I relevantly provided:

"(1) 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; (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, the person shall be liable to imprisonment for a term of not more than fifteen years; (c) 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".

4. Both at the time of the appellant's offence and at the time of his original sentencing, the penalty for murder was fixed by s.3 of
the Crimes Act which read:

"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."

The learned sentencing judge and the members of the first Court of Criminal Appeal were of the view that, in the light of that penalty, the statutory offence of incitement to commit murder came within par.(c) of s.321I(1) of the Crimes Act and attracted a maximum penalty of life imprisonment. On the appeal to this Court, it was held that s.3 did not, for the purposes of s.321I, prescribe "a term" of imprisonment for murder of a "maximum length" with the result that the offence of incitement to commit murder fell within par.(b) of the sub-section and attracted a maximum penalty of imprisonment for fifteen years.

5. The appellant's conviction and original sentencing occurred in the interval of approximately ten months between the enactment ((2) Assent was given on 25 June 1991.) and commencement ((3) 22 April
1992.) of the Sentencing Act. As an incident of the substantially new sentencing regime which it introduced into Victoria, the Sentencing Act amended s.321I(1)(b) of the Crimes Act by substituting the words "level 7 imprisonment" for the words "imprisonment for a term of not more than fifteen years" ((4) See Sentencing Act, s.119(1) and Sched.2, par.57.). As a practical matter, the effect of that was to substitute a maximum penalty of five years imprisonment for the previous maximum penalty of fifteen years ((5) s.109.). Section 321I(1)(b) was in that amended form when the appellant came before the Court of Criminal Appeal for resentencing on 17 December 1992. Their Honours held, however, that the effect of s.117(4) ((6) s.117(4) 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.") of the

Sentencing Act was that the appellant remained liable to the maximum penalty prescribed by s.321I(1)(b) in its earlier or unamended form. Accordingly, the appellant was resentenced on the basis that the applicable maximum penalty was imprisonment for fifteen years. On the application for special leave to appeal to this Court, the appellant sought to challenge the correctness of the Court of Criminal Appeal's conclusion that the applicable maximum penalty was fifteen years. However, this Court considered that the Court of Criminal Appeal's
conclusion to that effect was clearly correct and confined the grant of special leave to exclude such a challenge.

6. By s.23 of the Sentencing (Amendment) Act 1993 (Vict.) ("the Sentencing (Amendment) Act"), the Victorian Parliament amended s.321I(1) to provide that, notwithstanding par.(b), a person convicted of incitement to commit "murder, treason or committing a piratical act", is liable to:

"(i) level 1 imprisonment; or (ii) imprisonment for such other term as is fixed by the court - as the court determines".

That amendment of s.321I did not become operative until 15 August 1993, which was a couple of days after the argument of the present appeal in this Court. Pursuant to s.109 of the Sentencing Act, "level 1 imprisonment" is life imprisonment. It is not suggested that that latest amendment will be applicable to the appellant if the present appeal against sentence succeeds and it becomes necessary that he be sentenced for yet a third time. It is common ground that, in that event, the applicable maximum penalty will remain imprisonment for fifteen years.

7. On resentencing the appellant, the members of the Court of Criminal Appeal made clear that, even though the reduced maximum penalty of imprisonment for five years was inapplicable to the appellant, they regarded the fact of the reduction of the then current maximum penalty as a relevant consideration to be taken into account in mitigation of the sentence which might otherwise be appropriate. Their Honours said:

"However, this Court will naturally take notice of the fact that this appellant is being now re-sentenced, on the basis of a remission-mollified available maximum of 15 years, at a time when a new offender for exactly the same offence, who is not sentenced at all until after 22nd April 1992, would fall to be sentenced on the basis of a non-mollified available maximum of 60 months (five years). This consideration certainly does not require this Court to sentence the appellant on the basis of a remissions- mollified available maximum of 7 1/2 years or 90 months, but it does require the Court to take into account the possible dissonance referred to and to take it into account in favour of the appellant."

8. It was argued on behalf of the appellant that the sentence of imprisonment for nine years imposed by the Court of Criminal Appeal was so harsh that it was apparent that their Honours had failed to make adequate allowance in the appellant's favour for the implications of the history of this case in the context of variations which had occurred in applicable statutory provisions. The appellant is, it was said, "entitled to feel a strong sense of grievance and injustice". He has, for two years, "lived in a state of uncertainty as to the maximum sentence to be applied to his offence". The length of the sentence which the Court of Criminal Appeal imposed disclosed, it was claimed, a failure by their Honours to give "the appropriate weight" to "the 'possible' dissonance between the sentence in this case and the (current) maximum of five years". The importance of that dissonance, as a source of grievance and injustice, is, it was submitted, underlined by a subsequent case of Reg. v. Boucher ((7) Unreported, 11 February 1993.) in the Supreme Court of Victoria in which O'Bryan J, in sentencing a person convicted of incitement to murder to the then current maximum term of five years, expressly
commented that the circumstances of the case before him revealed "a far more serious example of the offence charged than was revealed" in the case of the present appellant.

9. There is nothing in the above submissions which would warrant the interference by this Court with the sentence imposed by the Court of Criminal Appeal. The difference between the view of the learned sentencing judge and the first Court of Criminal Appeal on the one hand and this Court on the other about the maximum penalty for
incitement to murder could not legitimately give rise to any significant sense of "grievance and injustice" on the part of the appellant in circumstances where the more favourable view for which he contended ultimately prevailed. It is true that the fact that the maximum penalty for that offence had been reduced to five years at the time when the appellant was resentenced meant that there was an obvious possibility of "dissonance" between any sentence imposed upon the appellant and any sentence imposed upon a comparable offender to whose offence the reduced maximum penalty was applicable. As has been seen, however, the members of the Court of Criminal Appeal expressly recognized that such "possible dissonance" was a relevant factor to be taken into account in the appellant's favour. In a context where s.117(4) of the Sentencing Act had manifested a legislative intent that the new maximum sentences introduced by that Act should be inapplicable to persons in the situation of the appellant, the length of sentence imposed by the Court of Criminal Appeal does not of itself suffice to demonstrate that their Honours paid insufficient regard to the significance of that dissonance. The case of Reg. v. Boucher, which occurred after the resentencing of the appellant, admittedly provides a concrete example of such dissonance. The dissonance resulted, however, from the content of the legislation and not from any error in sentencing principle which might otherwise be inferred from the comparative length of the sentences imposed.

10. There is greater force in a more particular submission advanced on behalf of the appellant to the effect that the judgment of the Court of Criminal Appeal discloses that there is a real likelihood that the sentence imposed upon him was affected by an identifiable error of fact. In the course of their judgment, their Honours pointed out that the Sentencing Act had commenced on 22 April 1992, which was between the date of the Court of Criminal Appeal's order of 1991 refusing leave to appeal against sentence and this Court's order granting leave to appeal from that refusal. Their Honours asserted that the "relevant maximum penalties" were "altered" by the Sentencing Act "upon the footing that the analysis by Marks, J and by (the Court of Criminal Appeal) of the relevant provisions was correct and not, as the High Court held, wrong in law". Subsequently, their Honours expanded upon the subject:

"Marks, J and this Court in 1991 were of opinion that the maximum penalty for incitement to murder in 1991 was fixed by paragraph (c) of s.321 I (1), whereas the High Court in October 1992 held that it was in 1991 fixed by paragraph (b) of the sub-section. It is clear that the High Court's view surprised amongst others the Victorian legislature, a matter which may have some relevance to our final orders.

On 22nd April 1992, at a time when the legislature not unreasonably believed - in accordance with this Court's decision of 7th October 1991 - that the penalty for incitement to murder was fixed by paragraph (c), the Sentencing Act 1991 came into operation. By force of s.119(1) of that Act and paragraph 57 of the Second Schedule thereto, the penalty for incitement to offences for which 'the penalty is imprisonment for a term the maximum length of which is not prescribed by law' was lowered to five years: see s.109(1) of the Sentencing Act. It is quite plain that the reason why the sentence was lowered from 15 years to five years is that it was considered, after the decisions of Marks, J and of this Court, that paragraph (b) of s.321 I (1) did not cover incitement to murder but only incitements for very much lesser crimes including many minor former misdemeanours." (emphasis added)

11. Clearly enough, the burden of the above comments is that it is "quite plain" the Victorian Parliament had amended par.(b) of s.321I(1) for the "reason" that it had been positively misled by the views expressed by the learned sentencing judge and the first Court of Criminal Appeal in the present case to believe that the amendment would be inapplicable to the offence of incitement to commit murder. In fact, however, it is quite plain that the Victorian Parliament could not, in making the relevant amendment, have been so misled. As has been seen, assent was given to the Sentencing Act on 25 June 1991 which was before the relevant views were expressed by either the sentencing judge or the first Court of Criminal Appeal. Indeed, the appellant was not even convicted until 26 July 1991. That being so, the suggestion that the legislature had been positively misled by those judicial pronouncements was simply wrong.

12. It is true that, as has been seen, the Sentencing Act did not actually commence operation until 22 April 1992 and that their Honours referred, in their comments, to the commencement rather than the enactment of that Act. Their Honours would not, however, have intended to suggest that delay in the administrative proclamation of a time for the commencement of a comprehensive statute such as the Sentencing Act provides a legitimate basis for either treating the mental processes of the responsible Minister or administrative officer as some sort of substitute for legislative intent or for holding that judicial utterances which had not even been made at the time of enactment should somehow be treated as having retrospectively misled the legislature. The relevant legislative intent or belief is, of course, the intent or belief of the legislature at the time when it enacts ((8) See, e.g., Blackstone, Commentaries on the Laws of England, (1765), bk 1, pp.59, 61; Black-Clawson Ltd. v. Papierwerke A.G. (1975) AC 591, at pp.613-614.) or, in some circumstances, when it subsequently reaffirms ((9) See, e.g., Platz v. Osborne (1943) 68 CLR 133, at pp.141, 146-147.) the particular statutory provision. In a context where it has not been suggested that the Sentencing Act was ever, between enactment and commencement, reconsidered or amended by the Victorian Parliament or that that Parliament was influenced by some earlier judicial pronouncement to the same effect as those of the learned sentencing judge and the first Court of Criminal Appeal in the present case, the explanation of their Honours' comments must be that they inadvertently overlooked the critical distinction, for the
purposes of ascertaining legislative intent, between the enactment of a statute and its commencement.

13. It becomes necessary to consider whether their Honours' error had any adverse consequence upon the sentence imposed upon the appellant. Unfortunately, the effect of the error on the judgment is far from clear. It is, perhaps, conceivable that their Honours' comments that the Victorian Parliament acted upon "the analysis" by Marks J and by the first Court of Criminal Appeal and that it was, "amongst others", "surprised" by "the High Court's view" may have been included in their judgment merely for the purpose of conveying their disagreement with the unanimous decision of this Court by which they were bound. If that were the only purpose which the comments were intended to serve, they would be of little relevance for the purposes of the present appeal. That explanation of the comments arguably derives some support from their Honours' subsequent remark that the order made by this Court on the appeal to it had been "thrust upon" the Court of Criminal Appeal. It must, however, be rejected in the light of their Honours' express statement that the asserted surprise of the Victorian Parliament "may have some relevance to (their) final orders". That
statement was clearly calculated to suggest a possibility or likelihood that the suggested court-induced mistake by the legislature would reduce the significance which would otherwise have been given to the fact of the then current reduction of the maximum penalty. It plainly would not have been made if the various references to the mistaken belief and surprise of the Victorian Parliament were not
included as part of the process of reasoning leading to the determination of the sentence appropriate to be imposed upon the appellant. There is nothing in the balance of their Honours' judgment which dispels that possibility or likelihood. To the contrary, the statement in the final paragraph, that the sentence imposed was the appropriate one "in the very unusual circumstances of the present case", strengthens speculation that their Honours' erroneous view, that the reduced maximum penalty of five years had resulted from an identified court-induced mistake by the legislature, had an adverse effect upon the length of the sentence imposed upon the appellant.

14. Under the Crimes Act ((10) s.323.), a person who aids, abets, counsels or procures the commission of the offence of murder may be tried, indicted, or presented and punished as a principal offender. The offence of incitement to murder is treated differently. Indeed, as the present case illustrates, a person can be convicted of the offence of incitement to murder notwithstanding that there has been no murder. Nonetheless, it would seem unlikely that individual members of the Victorian Parliament which enacted the Sentencing Act had a specific subjective intention that the maximum penalty for the statutory offence of incitement to murder should be reduced to imprisonment for only five years. Indeed, it would seem highly likely that, if the question had been specifically raised, the majority, and probably all, of the members of the Victorian Parliament would have been of the subjective view that a maximum penalty of imprisonment for five years was quite inadequate. The subsequent amendment of s.321I(1) of the Crimes Act by the Sentencing (Amendment) Act perhaps confirms that that is so. However, there is a clear distinction between the positive identification of a court-induced mistake by the legislature and speculation or an assumption that one particular effect of the amendment of a general legislative provision either was not adverted to or was unintended by the individual members ((11) See, e.g., Corporate Affairs Commission (N.S.W.) v. Yuill (1991) 172 CLR 319, at pp.339, 345-346; Salomon v. Salomon and Co. (1897) AC 22, at p.38; Inland Revenue Commissioners v. Dowdall, O'Mahoney and Co. Ltd. (1952) AC 401, at p.426; Black-Clawson Ltd. v. Papierwerke A.G. (1975) AC, at p.638.). In particular, a subsequent, but inapplicable, legislative reduction of the maximum penalty for the offence for which a convicted person is being sentenced could justifiably be seen by the sentencing judge as less significant in a case where it was apparent that the reduction had resulted from an identified court-induced mistake by the legislature than in a case where all that could be said was that it was unlikely that the individual members of the legislature had subjectively adverted to that particular effect of a general amending provision.

15. In the circumstances of the present case, it would be wrong to permit the sentence imposed upon the appellant by the Court of Criminal Appeal to remain undisturbed for the reason that their Honours, having indicated that a particular erroneous conclusion may or may not be treated as relevant, did not make plain that, in the event, it had been so treated. If a sentencing court indicates that a particular factor may adversely effect the sentence to be imposed, it is that court's duty to make plain whether that factor did, in the event, have that effect. Considerations of fairness to the appellant dictate that the sentence which the Court of Criminal Appeal imposed be treated as affected by error and quashed. In that regard, the fact that, since the present appeal was argued before this Court, the further amendment to s.321I of the Crimes Act has become effective with the result that the present maximum penalty for incitement to murder is life imprisonment cannot operate retroactively to confer validity upon the sentence imposed by the Court of Criminal Appeal. To the contrary, the effect of quashing the appellant's sentence is that he is entitled to be resentenced without being prejudiced by an inapplicable legislative amendment enacted at a time when, but for the error of the Court of Criminal Appeal, he would have already been properly resentenced ((12) See Radenkovic v. The Queen (1990) 170 CLR 623, at p.632; cf. Reg. v. Carroll (1991) 2 VR 509, at p.511.).

16. Ordinarily, the appropriate course to be followed by this Court in the circumstances would be to make an order quashing the appellant's sentence and remitting the matter to the Court of Criminal Appeal of Victoria so that the appellant might be resentenced in accordance with law. The circumstances of the present case are, however, extraordinary both by reason of its long appellate history and by reason of the fact that it is, in our view, apparent that the Court of Criminal Appeal's error could not conceivably have caused an increase of more than a comparatively minor proportion of the sentence of imprisonment which it imposed upon the appellant. Counsel for the appellant has strongly argued that the interests of justice will be best served if the Court adopts the course of itself resentencing the appellant. The Crown has indicated that it does not oppose that course. We have, with some hesitation, come to the conclusion that, in the extraordinary circumstances of this case, it is the appropriate one. We would order that the sentence imposed by the Court of Criminal Appeal be set aside and that, in lieu thereof, it be ordered that the appellant be sentenced to imprisonment for a term of eight years with a minimum term of six years and two months before he is eligible for parole.