GSH v The Queen

[2010] HCATrans 64

[2010] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney     No S277 of 2009

B e t w e e n -

GSH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 2010, AT 3.06 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear with MS G.A. BASHIR and MR W.J. HUNT for the applicant.  (instructed by Legal Aid Commission of NSW)

MS D.M.L. WOODBURNE, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HEYDON J:   Yes, Mr Game.

MR GAME:   If the Court pleases.  May I take the Court to page 93 of the application book.  At page 93, paragraphs 45 and following, one sees the asserted error of the sentencing judge identified, namely, a misidentification of the standard non‑parole period.  It is said in paragraph 46, in effect, that the error was unfortunate and then it is said in 47 that one cannot assume it had no influence and our argument, it is said, is put at 49.  Our argument was, both in writing and orally, that the standard non‑parole had not been increased and our second argument was that which appears at paragraph 49 which was that if it had been increased, then discretionary factors would favour non‑intervention by the court on this ground because of the way in which the error occurred and similar considerations.

So, in the result, although argued both in writing and orally, the point argued was never addressed by the Court of Criminal Appeal.  In a minute I am going to come to the legislation, but we do say this, that if our argument is shown, say, reasonably arguable, then our case for special leave is strengthened by the failure of the court to deal with it for this reason, that section 35A of the Judiciary Act picks up the idea of the administration of justice so that there is an additional factor that would favour a grant of special leave, namely, that the question has not in fact been addressed by the court below, which is to say, had the court decided it and determined on, shall one say, a contested result, it might be different if they came to a considered view about which minds might differ, but we say this is different when the point was so central to case, was so directly addressed and so clearly not addressed. 

When our opponents say, well, the court must have dealt with it in a particular way, and I mean no criticism, but that is unduly inventive, in a sense, because the argument that the Crown puts in this Court was not an argument that was put below. May I take the Court then to the legislation in the bundle of material. First could your Honours go to – it is in this bundle and there should be tabs and behind tab 7 – and I will mostly be referring to tab 7 – but first could your Honours to go in tab 7 to section 19 of the Crimes (Sentencing Procedure) Act 1999. That is the section upon which we base our argument.

That section has equivalence in federal legislation in almost every State and Territory legislation and it came across from section 55 of the Interpretation Act and it is a building block of sentencing and it involves a statutory rule of a fundamental kind in sentencing.  We would submit that ordinary canons of interpretation would mandate that one needs explicit language to displace it.  I will come back to this tab in a minute, but if your Honours ‑ ‑ ‑

HEYDON J:   Can I just one thing straight.  You said that it was argued below that the standard non‑parole period was not increased, contrary to the Crown’s position, is that right?

MR GAME: The standard non‑parole period was increased by the regulation, but my point is that that is an increase in the penalty and that you have to read clause 57 with section 19. That was the argument that we put there and we put now.

HEYDON J:   By all means put it.  A statute can have a mandatory penalty, maximum penalty in which the sentencing court has a discretion as to what it should be up to that maximum, or you could have a minimum and a maximum with a discretion between those two limits.

MR GAME:   Quite, your Honour.

HEYDON J:   The selection of a standard non‑parole period and changing the number of years in that is not a change in penalty, is it?

MR GAME:   Our argument is that it is an aspect of the penalty when one looks at the legislation.  In fact, that is what, shall one say, justifies its existence from a legislative point of view, which is that it is an aspect of the penalty.  I will have to take you to the statutory scheme in a minute, but if one looks at 19(3), one sees:

a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.

I will just take you in a moment to the provisions that were introduced, and that is behind tab 6.  What came in behind the time of the offence and the time of sentence was No 50 of 2007.  Just before I leave that, part of our argument is that the standard non‑parole period is equivalent to a minimum penalty, but I will explain that when one looks at the legislation.  In this amending Act a number of changes were made to the Crimes (Sentencing Procedure) Act.  These changes included things involving what might be described as how subjective and objective circumstances be dealt with.  That is section 21A.  One comes then to clause [8] on page 4 and one sees:

Murder‑where the victim was a child under 18 years of age   25 years

That is an increase in the penalty, on our argument, from 20 to 25 years.  The next ones that come for other offences are five, four, four and three.  They may or may not be increases in the penalty, but it is not necessary for our argument to establish that.  Then one comes to the next one, 61M(2).  That is an increase of the standard non‑parole period between the time of the offence and sentence from five to eight years.  One sees that in these provisions there have been nominations of standard non‑parole periods and increases of at least two. 

Then the provision that is the contested provision is clause 57 which sits on pages 5 to 6 and that is the provision which it is said, shall one say – assuming our argument is correct about the standard non‑parole period being an aspect of the penalty, it is said against us that that excludes the operation of section 19 and we say they can stand side by side and the language of section 57 is not nearly specific enough to exclude the operation of section 19.

With respect to the question about whether the standard non‑parole period is an aspect of the penalty – I am going to come to the provisions in a moment – there are a number of States now in Australia which have standard non‑parole periods and there are a number of States in which – I can think of at least one – where what a standard non‑parole period means has been considered.  If I have time I will take your Honours to a South Australian one where there was a constitutional challenge, where the very idea that it was a penalty justified its constitutionality in the view of the court.  May I now go back to behind tab 7.  If I may go to section 44 “Setting terms of imprisonment”:

When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence –

So the non‑parole period comes first in the fixing of the sentence.  So the sentence is the non‑parole period and the balance of the term, which appears in section 44(2).  If I may go then to section 54A, “What is the standard non‑parole period?”:

the standard non‑parole period for an offence is the non‑parole period set out –

et cetera.  Then it says:

For the purposes of sentencing an offender, the standard non‑parole period represents the non‑parole period for an offence in the middle of the range of objective seriousness –

So that if the court makes an assessment that the offence is in the middle of the range, then the court must fix the standard non‑parole period, and one ‑ ‑ ‑

BELL J:   Assuming the matter proceeds after trial.

MR GAME:   Well, your Honour, yes, but, your Honour, the reason for that is – I will say that again because there is a mistake in what I just said.  The standard non‑parole period is for an offence in the middle of the range of the objective seriousness for the offences, bracket, and there are no other factors), because this is only referring to the objective circumstances.  That is how the plea comes into it because objective seriousness is that which is identified in 54A(2), but it does not purport to exclude other considerations.  But if there are no other factors, then the court must fix that sentence.  That is in section 54B(2).

BELL J:   But subsection (2) requires the court to determine whether there are reasons for setting a non‑parole period that is longer or shorter than the standard and, of course, in doing that the court is constrained by the provisions of subsection (3) which direct you back to 21A.

MR GAME:   Yes, your Honour, but when one is fixing the penalty, there are now two factors that determine the penalty that may be imposed; one a maximum penalty for the head sentence, one a mandated penalty for the non‑parole period.  In our submission, it is inexorable at that point that the nomination of the standard non‑parole period is an aspect of the penalty.  It is not as if to say there is just one penalty, which is the head sentence.  I am thinking of, amongst other things, a decision of the Court of Criminal Appeal in Way, where it was said – and perhaps if I just go back to it. That is in the bundle. It is at (2004) 60 NSWLR 168 and if one looks at paragraph 50, this the Chief Justice’s judgment:

In a case involving a Table offence, there are now two statutory guideposts or benchmarks or reference points available:  namely the maximum sentence (that is, the term of the sentence) which the legislature has prescribed for the offence; and the non‑parole period which applies to the offences specified in the Table.

In our submission, the standard non‑parole period is no less the penalty than the fixing of the head sentence is the penalty.  Down at the bottom at 53:

There is nothing in Div 1A to suggest that the statutory maximum ceases to provide a benchmark, or a reference point, in sentencing, so far as it is a manifestation of legislative intention as to the seriousness of the offence.  The focus is, however, likely to shift more towards the standard non‑parole periods where they apply, since they may be taken to express a legislative intention as to the minimum periods of actual imprisonment, which are appropriate for the relevant offences.

In our submission, whether or not one ultimately succeeds, there are strong indications, in our submission, that a standard non‑parole period is an aspect of the penalty for the purposes of section 19.

BELL J:   Does one get some concept of what is meant by “penalty” for the purposes of section 19 by reference to section 18? Just on the face of it, the references in your submission, Mr Game, to a penalty, when referring to a standard non‑parole period, seem to introduce a novel concept.

MR GAME:   At the time section 18 came in there were not standard non‑parole periods, but your Honour, if you go back to the definition of “penalty” and “sentence” in section 4 and section 3:

The penalty to be imposed for an offence is to be the penalty provided by or under this or any other Act or law.

If one goes back to the definition of “sentence”:

sentence means:

(a) . . . the penalty imposed for an offence, and

(b) . . . to impose a penalty –

If one asks oneself, in our submission, what is the penalty for the offence, when you have in a table a nominated standard non‑parole period and you have at the end of the section the nominated sentence, then you have penalty in both places, but it is much a penalty even though all it is doing is fixing the minimum time that you spend in prison.  I mentioned a South Australian case and I have not put it on our list, but I would just like to provide this case to your Honours.  It is a case where inventive counsel challenged the constitutionality of this provision, but I just wanted to take you to this case briefly and the Chief Justice’s judgment.  I will just hand you those, your Honours.

South Australia has similar legislation and one sees the relevant provisions at pages 62 though to 63 and then what the court is required to do in 36 and 37 has a reasonable similarity with that which applies in New South Wales.  Then one sees the changing of the legislative scheme set out at 67.  The passages I wanted to draw to your Honours’ attention are

paragraphs 70 and 80.  It seems, and I accept that one cannot draw too much from this, but the argument about the constitutionality of the legislation is proceeding on the assumption that the non‑parole period is an aspect of the penalty for the offence.  That is the reason for the reference to Palling v Corfield at paragraph 71.  I neglected to mention back at paragraph 38, again these words “yardstick or benchmark” that appear both in Way and this case come from.....at least.  Paragraph 38 is described as a:

yardstick or benchmark . . . of the relevant kind at the lower end of the range of objective seriousness. 

The point about that is this, that the standard non‑parole period must be imposed if the objective circumstances are in the middle of the range and there are no other sentencing factors, therefore, in our submission, it follows that it is an aspect of the penalty. Once one arrives at that point, one has to read clause 57 with section 19 and we say clause 57 has done insufficient to, shall one say, oust the operation of section 19 in respect of increases of penalties. The yellow light is on, but may I just refer your Honours, for one moment, to MJR, which is at the beginning of our bundle.  The principles that we would call in aid appear at page 372, paragraphs 18 to 20.  Those are the kind of canons of statutory interpretation that we urged to the court below and urge to this Court.  If the Court pleases.

HEYDON J:   Thank you, Mr Game.  We will not trouble you, Ms Woodburne. 

The applicant raises questions of construction in relation to the Crime (Sentencing Procedure) Act 1999 (NSW).  In our opinion there are insufficient prospects of the arguments he wishes to advance on an appeal succeeding to justify a grant of special leave.  Accordingly, the application is refused.

The Court will adjourn until 2.15 pm on 29 March in Canberra.

AT 3.27 PM THE MATTER WAS CONCLUDED