Hanley v The Queen

[1995] HCATrans 59

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M79 of 1994

B e t w e e n -

RICHARD CHARLES HANLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1995, AT 2.26 PM

Copyright in the High Court of Australia

MS F.P. HAMPEL:   May it please the Court, I appear on behalf of the applicant.  (instructed by Tony Danos)

MR P.A COGHLAN:   If it please the Court, I appear with my learned friend, MS K.E. JUDD, for the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

MASON CJ:   Ms Hampel.

MS HAMPEL:   The special leave point in this application may, at first sight, seem absurd but in fact, beneath it, there is a very serious point and that is, essentially, by reason of an unintended consequence on the amendments brought about to section 3 of Crimes Act which imposes the penalty for murder and the introduction of the Sentencing Act  of 1991 of Victoria the maximum term which can be imposed in respect of a conviction for murder is two years imprisonment.

The reason that result flows, in my submission, is this:  the penalty for murder in one the maximum term for which is not fixed by law.  That is because neither subparagraph (a) or (b) of section 3 of the Crimes Act, which set out the two ways in which a penalty can be imposed, set an outer limit expressed in days, months or years.  If I could take the Court to section 3 of the Crimes Act we see that the penalty for murder is:

(a) level 1 imprisonment; or

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

as the court determines.

Those last words “as the court determines” clearly differentiating between the decision to impose a term of level 1 imprisonment or such other term.

Now, level 1 imprisonment is defined in the Sentencing Act under the table set out to section 109 of that Act as life imprisonment.  So in other words, the court sentencing a person for murder can either impose a sentence of life imprisonment under paragraph (a) of section 3 or such other term as is fixed by the court under paragraph (b) of section 3.

Neither of those terms, “life imprisonment” or the one under paragraph (b), are a fixed and defined and known in advance outer limit.  As such, section 9 of the Sentencing Act which is, in effect ‑ ‑ ‑

DEANE J:   Section 3(a) of the Crimes Act was in fact introduced by the Sentencing Act, was it not?

MS HAMPEL:   Subparagraph (a) of section 3?

DEANE J:   Yes.

MS HAMPEL:   Yes, your Honour.  Well, it was amended.  Prior to that, there was still a two-level process for sentencing but before the Sentencing Act came in it said (a) was for the term of his or her natural life and (b) was for such other term as is fixed by the court.

DEANE J:   So we have a situation in which the Sentencing Act itself made particular provision to the effect that the penalty for murder was level 1 imprisonment.

MS HAMPEL:   Yes.

DEANE J:   And you say that that express provision relating to murder is to be overridden by a general provision reducing the penalty for murder to level 9 imprisonment.

MS HAMPEL:   No, I rely more on subparagraph (b) of section 3 which refers to the other basis upon which a person can be sentenced for murder, namely imprisonment for such other term as is fixed by the court.  But neither subparagraph (a) nor subparagraph (b) of section 3 fix a defined outer limit and therefore neither subparagraph (a) nor (b) are terms of imprisonment, the maximum term for which is fixed by law, and therefore section 9 of the Sentencing Act, which is the default provision if a fixed term of imprisonment is not fixed by law, comes into play.  That is the scheme.  I will take your Honour through it in slightly more detail.

DEANE J:   I have followed the scheme.

MS HAMPEL:   It comes about as a result of the reasoning followed by this Court in Dimozantos [No 1].  That was the case of incitement to murder where the decision of the Court turned on whether a term of life imprisonment was a term fixed by law or fixed by some other authority, namely the effluxion of life, whatever brings about the effluxion of life.  It is clearly, in my submission, an oversight or an unintended effect of the amendments brought about by the sentencing code introduced under the Sentencing Act of 1991 but although it is an unintended consequence, that is in fact the only interpretation of that legislative framework, section 3 of the Crimes Act, section 9 and section 109 of the Sentencing Act, leaving the court, in my submission, in the position where it cannot rewrite the legislation so as to give effect to what it might reasonably be thought to have been Parliament’s intention in the first place, but must construe the provisions according to their proper meaning.

DEANE J:   But do you not have to face up to the fact that the Sentencing Act in terms said the penalty for murder is level 9 imprisonment or such other order?

MS HAMPEL:   Yes.

DEANE J:   And your argument is that a general provision, not specifically directed to murder, overrides that to say the penalty for murder is level 9 imprisonment?

MS HAMPEL:   No.  If level 1 imprisonment is not imposed, and therefore the person is sentenced under subparagraph (b) of section 3, namely for imprisonment for such other term as is fixed by the court, because that does not have a fixed or defined outer limit, the default provisions in section 9 of the Sentencing Act come into effect so as to impose what is level 9 imprisonment or 2 years as the maximum.  That is the argument, your Honour.

DEANE J:   It sounds as if you would guarantee a sentence of life imprisonment for everybody.

MS HAMPEL:   As I said, it is clearly not an intended consequence, but it is the effect, and what the court did in this applicant’s case was sentence him under subparagraph (b), not subparagraph (a); that is, he was sentenced to a term of years with a maximum and a non-parole period fixed. 

In Dimozantos 174 CLR 504 at pages 506 to 507 the Court was looking at the issue as to what was a maximum term of imprisonment fixed by law and what was not, that being the relevant sentencing framework for the sentence for incitement. But at page 507 at about the half-way point the Court said this:

When the phrase “maximum length” is used in such a context ‑

that is the context of imposing a sentence -

it seems to import a length which is known when the discretion is to be exercised, not a length which is unknown ‑

and it goes on to way -

and will remain unknown until the natural life expires.

That was where the Court was considering specifically “for the term of his or her natural life”.  The Court went on to say:

The better view of s.321I(i) is that “maximum length” referred to in par. (b) describes a term of imprisonment fixed or calculable in years, months or days; it does not describe a term of indeterminate duration -

And it is my submission that if one looks at paragraphs (a) and (b) of section 3 Crimes Act, both of those fit within that description of a term of indeterminate duration as the framework within which the sentencing court can then or does then go to exercise its discretion.

Section 9 of the Sentencing Act makes it quite clear that if the maximum length of imprisonment is not fixed -

GAUDRON J:   Does your argument, so far as it is based on paragraph (b) and not (a), accept that there is a maximum term fixed if there is a sentence of life imprisonment?

MS HAMPEL:   It is not a maximum term fixed by law, that much is clear from Dimozantos, and it is not a maximum term the length of which can be calculated or known in advance, because it is not fixed by reference to years, months or days.  So the court, in sentencing for murder ‑ ‑ ‑

GAUDRON J:   We are not looking for “fixed by law” in this case, though, are we?  We are looking for prescribed somewhere?

MS HAMPEL:   Yes, “where the maximum term is not prescribed” anywhere, is the phrase used, in section 9.

GAUDRON J:   So you do accept that level 1 imprisonment is a maximum term prescribed somewhere?

MS HAMPEL:   The argument is much easier in respect of paragraph (b) than it is with paragraph (a).

GAUDRON J:   I am not too sure that it is, because you have to establish that they are not alternatives.  It seems to me you have to deal with it to establish that paragraph (a) is not in fact the maximum term and paragraph (b) is the lesser term.

MS HAMPEL:   I think, your Honour, I would actually prefer to skirt it because the applicant was sentenced under paragraph (b).

GAUDRON J:   I do not think you can.

MS HAMPEL:   That could be one of the difficulties I have.  It is clearly not a maximum term fixed by law, so far as Dimozantos is concerned.  It is a term the maximum length of which is not known at the time the person comes to be sentenced, and that is the same for both (a) and (b).

GAUDRON J:   But we are looking for a maximum term prescribed somewhere, or prescribed anywhere.

MS HAMPEL:   That, I suppose, is really the threshold point, whether one can say there is a difference between fixed by law and prescribed.  I suppose we can ‑ ‑ ‑

GAUDRON J:   And it is a term of imprisonment not a length of sentence.

MS HAMPEL:   We can all say our term of life is prescribed at some stage and may be known, the time that we are born, but whether it is prescribed for the purposes of the Sentencing Act is really the issue, and it is not.  Effluxion of life, rather than effluxion of time, is going to bring about the expiry of the sentence for natural life, whereas it is simply the calculation of years known at the date that you are sentenced in respect of a sentence under paragraph (b) of section 3.

But that is the distinction and I am not sure that I can take it any further than that, your Honour.  It is one of these points that is either right or it is wrong and there is no midground, but I do not think I am in a position to advance anything further than what I have on that difference between prescribed and fixed by law.  But it is my submission that for a maximum term of imprisonment to be prescribed, it must be of a length that is known at the time that the sentencer embarks upon the sentencing exercise, not at the time when the sentencer pronounces the sentence because, of course, once one says, “Your sentence is going to be 10 years”, then one knows that that is the maximum time.  But if one looks at paragraph (b) of section 3, at the time that one is convicted of murder, one does not known what the upper limit is, whether the discretion is to be exercised under paragraph (a) or (b).  So, because there is no outer limit, it falls, in my submission, within section 9 of the Sentencing Act.

That then brings me to the next problem the applicant faces, which is does a sentence for murder under section 3 of the Crimes Act actually fall within section 9 of the Sentencing Act because section 9 on the face of it applies only to a sentence for an offence under an enactment and murder is, in Victoria, still a common law offence.  There have been significant changes by reason, first of all, of introducing a penalty by statute and also by reason of the introduction of a specific statutory code for felony murder which has repealed the common law for felony murder in Victoria.  But on the face of it, it would seem that I would have some difficulty explaining how I could say murder, which is a common law offence, is nonetheless an offence under an enactment.

There are two reasons why, in my submission, one can in fact bring a murder sentence under section 9 and why a murder sentence does fit under section 9 of the Sentencing Act.  They are these:  first, although the offence itself is still common law, the penalty has been prescribed for a considerable time by statute and the attempt to cut down murder by codifying that part of murder which relates to felony murder shows again a statutory intervention so that one say, although the elements of murder are not defined in the Act, it is nonetheless an offence against an enactment because the penalty and the interference with that other part of it.

The other reason is a matter of statutory interpretation and I would take the Court to these matters in that regard.  First, if one looks at section 1(b) of the Sentencing Act, the purposes of the Sentencing Act include this:

to have within the one Act all general provisions dealing with the powers of courts to sentence offenders.

So it is clear, in my submission, if one looks at paragraph (b) of section 1 that it was intended, under the Sentencing Act, to deal with all offences and not to leave out common law offences.

Second, the heading to section 9 of the Sentencing Act which one is able to look at by virtue of the State Interpretation of Legislation Act which empowers one specifically to look at such matters in assisting one in interpreting the legislation, the heading is “Term of Imprisonment where none prescribed”.  That does not refer to simply statutory offences but, on the face of the heading, appears to apply to all terms of imprisonment where none is prescribed.

The next three matters I would rely on are in extraneous material I would seek to hand up to the Court.  They are the explanatory memorandum to the Sentencing Bill, the Bill itself in the form it was presented to Parliament and what was said in both the second reading speech of the Attorney-General and of the shadow minister, all seeming to proceed on the basis that it provided a code for sentencing in respect of all offences under the Crimes Act in Victoria.  They appear under tabs 4, 5 and 6 in your folders, your Honours.  Under tab 4 is the explanatory memorandum.  I take your Honours first to the outline itself which says:

The Bill replaces the existing Penalties and Sentences Act 1985 and continues the practice that all the general provisions relating to sentencing of offenders by the courts should be incorporated within a single piece of legislation.

Then to the top of the next page which refers to clause 10 which, in fact, finds its way unchanged as section 9 of the Sentencing Act.  It says:

Clause 10 provides for a maximum of a level 8 imprisonment where an offence is punishable by imprisonment but no maximum is specified. 

It does not there refer to a limitation only to statutory offences or offences under an enactment.

Your Honours will see from the next paper in that bundle under tab 4 that not only is clause 10 the equivalent of section 9, but also that level 8 imprisonment is the equivalent level 9 in the Act as it was passed.

Could I take your Honours to the parliamentary debates which appear under tab 5, and specifically to page 337 of the Hansard of Tuesday, 19 March 1991, which is the speech of the Attorney-General and where, at the mid-point of the page, it says:

In line with the recommendations of the task force, the Bill contains a thirteen level scale with ten custodial levels and three non-custodial levels defined in terms of maximum penalties.

All offences under the Crimes Act are allocated to one of these levels.

Again, in my submission, an indication that it was supposed to cover everything. 

Then to page 1479, the Hansard of 18 April 1991, where the shadow Attorney-General, now the Attorney-General, was speaking and, in the third paragraph of her speech, this sentence:

The Bill finally before the House is a code on sentencing.

And that, in my submission, is properly the way it is to be regarded, namely a code which was intended to cover all sentences under the Crimes Act.

Finally, to tab 6, the report of the Sentencing Task Force, and particularly to paragraph 72, which appears on the fourth page in extract your Honours have, which refers to life sentence as the

benchmark of the outer parameter.  All the other terms sought to be imposed being fixed terms, the maximum length of which is known and should fall beneath that.  That is relevant because in the Attorney’s speech to Parliament it says that the Sentencing Act was brought in as a result of the recommendations of the task force, following the recommendations of the Starke Sentencing Committee in 1988.  So, in my submission, all of those show that the intention was that section 9 of the Sentencing Act was to cover all sentences and not just those for statutory penalties.

There is just one last matter, and that is the out of time matter.  This is both out of time and not argued before the Court of Criminal Appeal.  I would simply say this on that:  it is a novel point.  It was not known to the applicant or his advisers before his appeal was argued before the Court of Criminal Appeal.  If my submission is right, then in my submission he should not be precluded from having this argument put and determined in respect of his case, because otherwise he would simply have to wait for somebody to argue it within time, and then to apply for resentencing.  That would seem, in my submission, to be a wrong way to go about it.

Those are my submissions, if the Court pleases.

MASON CJ:   Thank you, Ms Hampel.  The Court need not trouble you, Mr Coghlan.

In the view of the Court, the proposed appeal would fail.  Therefore the application for extension of time and the application for special leave are refused.  The Court will now adjourn sine die.

AT 2.49 PM THE MATTER WAS CONCLUDED