Hackett v The Queen

[1994] HCATrans 212

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B28 of 1993

B e t w e e n -

TIMOTHY OWEN HACKETT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

Hackett 1 11/2/94

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 FEBRUARY 1994, AT 11.15 AM

Copyright in.the High Court of Australia

MR S.E. HERBERT, QC:  May it please the Court, I appear for

the applicant. (instructed by Robertson O'Gorman)

MR M.J. BYRNE, QC:  May it please the Court, I appear with

my learned friend, MR J.R. HUNTER, for the

respondent. (instructed by D. Field, Solicitor to

Director of Prosecutions)

MASON CJ: Yes.

MR HERBERT:  Your Honours, the point taken in this case,

could I state briefly, because it may be that there

is a fairly immediate answer. The applicant was

sentenced to four years imprisonment below and

under the Penalties and Sentencing Act which
applied, that sentence was wholly suspended. At
the time at which the sentence was imposed, there

was a provision in the Penalties and Sentencing Act

section 151(1), (2) and (3), that provided this,

that imprisonment wholly suspended under

section 444, as this sentence was, is taken to be a

sentence of imprisonment for all purposes, other
than the provisions of an Act that provide for

remissions to be granted to offenders.

Subsection (1) of section 151 provided that

for the purposes of appeal against sentence

imprisonment partly suspended under section 144 is

taken to be a sentence of imprisonment for the

whole term of imprisonment ordered by the court.

Now, the submission fastens upon

section 151(2) for here, we are dealing with wholly

suspended sentences. The submission advanced is

that the Court of Appeal in quashing the sentence

and imposing instead an identical sentence, but

leaving out the suspension, acted in breach of

section 151. The submission is that section 151

required that court to regard the sentence as a

sentence of four years imprisonment and nothing	less; that being the sentence which it finally
imposed in any event -

MASON CJ: Notwithstanding that it was a suspended sentence,

they could not recognize that it was a suspended

sentence.

MR HERBERT:  Our submission is that that was the effect of

section 151. Section 151 no longer exists and it

was repealed very shortly after the institution of

the application, or very shortly after the judgment

of the Court of Appeal. Therefore, the point that

we take here no longer has application to any

future cases but only has application to this one.

That is why, at the end, our submission is that the

case involves a miscarriage of justice to this

Hackett 11/2/94

applicant in that his case was treated as if the

law was as it is now, rather than what it was at

the time that the Court of Appeal exercised its

judgment on the matter.

TOOHEY J: But it is almost inconceivable, is it not, that

the legislature could have intended that if a court

imposes a sentence of imprisonment and suspends it

forthwith for the entirety of the period of the

sentence, that on appeal an appeal court has

somehow to shut its eyes to this fact and say, "But

for all purposes with which we are concerned, the

person has been sentenced to imprisonment".

MR HERBERT:  For us to succeed it is necessary to establish

that that, indeed, is the meaning of the

legislation. As to section 151(1), that certainly

appears, with all respect, to be the plain effect

for the purposes of appeal against sentence.

Imprisonment partly suspended is taken to be a

sentence of imprisonment for the whole term of

imprisonment ordered by the court. It is

difficult, in our respectful submission, to regard

that as having any other construction than that the

Court of Appeal - - -

McHUGH J: But does it lead you anywhere, in any event?

Because section 669A of the Criminal Code gives the

Attorney-General the right to appeal against this

particular sentence.

MR HERBERT:  Yes.

McHUGH J: And it also empowers the court on such an appeal

to, in its unfettered discretion, vary that

sentence and the court's - it was entitled to look

at section 144(4) which provides that the court

must not suspend a term of imprisonment unless it

is satisfied that it is appropriate to do so. Why

does not the Court of Criminal Appeal have those

powers and just simply say, "Well, we are not going

to vary this suspended sentence, even though it is

to be treated as a sentence for all purposes, and

we are not satisfied that the trial judge was

authorized by section 144 to suspend it"?

MR HERBERT:	If the effect of section 151 is to leave alone the powers of the Court of Appeal, as provided for
by the Code, then we cannot succeed. The
submission is that this legislation modifies the
power of the court. It is later, specific,
legislation; it cannot have no meaning. The
meaning it has is very simple on the face of it:
that the Court, indeed, is to ignore that fact.

McHUGH J: In those days it was under a general heading

called "General Provisions", was it not?

Hackett	11/2/94
MR HERBERT:	Yes.

McHUGH J: Well, it is a general provision; in the Court of

Criminal Appeal statutes a specific provision.	Why
should you not give effect to the specific provision?

MR HERBERT: This is a later statute and it has express

provision in its terms for the purposes of appeal

against sentence. Our argument fixes upon

subsection (2), not (1), so I point that out.	We
would say that the structure of those two

provisions is such that it is necessary in relation

to partly suspended imprisonment to make the

express provision because one cannot simply provide

that it is imprisonment for all purposes. It

cannot be because of the law with respect to

remissions. So there has to be some modification.

In subsection (2) no such modification is

needed because there are no remissions, and it is

therefore, in our submission, to be construed as
being a more general provision, but express in

terms of what appeals can achieve and it simply

prevents the court looking at it, the courts to

treat it as if it is a four year sentence of

imprisonment.

McHUGH J: Well, your argument comes to this: that in

effect, the legislature intended no appeal against

the suspension of a sentence.

MR HERBERT:	Yes. Those are our submissions.
MASON CJ: Mr Herbert, could I ask you this question:	is

this case legally aided?

MR HERBERT:  No.

MASON CJ:  The Court need not trouble you, Mr Byrne. The

Court is of opinion that the decision of the Court

of Criminal Appeal was plainly right. The

application for special leave to appeal is

therefore refused.

AT 11.22 AM THE MATTER WAS ADJOURNED SINE DIE

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