Herbert v The Queen
[2004] HCATrans 425
[2004] HCATrans 425
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P32 of 2003
B e t w e e n -
TROY MATTHEW HERBERT
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
GLEESON CJ
GUMMOW J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 28 OCTOBER 2004, AT 9.50 AM
Copyright in the High Court of Australia
MR R.D. YOUNG: May it please the court, I appear for the applicant. (instructed by Gunning Young)
MR K.P. BATES: May it please the Court, with my learned junior, MS N.A. LOCKWOOD, I represent the respondent. (instructed by Director of Public Prosecutions (Western Australia))
GLEESON CJ: Mr Young, it would assist us if you could take us through the legislative provisions that bear on this question referred to, for example, on the top of page 32 of the appeal case. Do you see in the judgment of Chief Justice Malcolm the first complete sentence on page 32? This goes to the issue that you want to raise about what were the maximum available penalties in relation to some of these offences.
MR YOUNG: Yes.
GLEESON CJ: Could you take us through the legislative scheme in relation to that issue, please?
MR YOUNG: Certainly, your Honour. Perhaps I can just go back a step and seek an extension of time for this application.
GLEESON CJ: Is that opposed, Mr Bates?
MR BATES: It is not opposed.
GLEESON CJ: Yes, you have that extension.
MR YOUNG: I am obliged, thank you, your Honour. Section 32 and section 33 – and copies of those appear in the book of materials ‑ ‑ ‑
GUMMOW J: Of the Sentencing Act?
MR YOUNG: The Sentencing Act, yes, enable a procedure whereby pending charges in the Court of Petty Sessions that would otherwise be dealt with in the Court of Petty Sessions ‑ ‑ ‑
GLEESON CJ: This on pages 2 and 3 of the book?
MR YOUNG: Yes, that is correct. Those pending charges can be brought up to a superior court.
GUMMOW J: Just a minute. Take us through the statute.
MR YOUNG: Yes, certainly. The starting point is that there must an offence on indictment being dealt with by a superior court.
GUMMOW J: Where do we see that?
MR YOUNG: That is in section 32(1).
GLEESON CJ: Any pending charge, that means any pending charge in any court.
GUMMOW J: Pending charge is defined in 31, is it not?
MR YOUNG: Yes, I beg your pardon, it is defined in 31. So it is:
a charge, in a court of petty sessions or in the Children’s Court, of an offence . . . for which no sentence has been imposed.
GUMMOW J: That is of an offence whether indictable or simple.
MR YOUNG: Yes, that is correct but it must be an offence of which there is an election for summary jurisdiction.
GLEESON CJ: Say that again?
MR YOUNG: If it is an indictable offence it must be an indictable offence capable of being dealt with summarily. So, for example, a charge of armed robbery cannot be brought up on a section 32 notice, that would have to be on indictment.
GUMMOW J: Where do we see that?
MR YOUNG: At section 32(3):
The list –
of pending charges –
must not include any indictable offence that the superior court would not have jurisdiction to deal with ‑ ‑ ‑
GLEESON CJ: I am terribly sorry to take time over this, but I need to be clear about it. The offences that may be the subject of a request under section 32(1) are offences in respect of whether there are charges pending within the meaning of 31.
MR YOUNG: Yes.
GLEESON CJ: Take one of the offences with which we are concerned in the present case, the charge referred to on page 68, No 18, the charge of “Burglary”. Do you see that?
MR YOUNG: Yes.
GLEESON CJ: That is one of the section 32 offences with which we are concerned.
MR YOUNG: Yes, that is correct.
GLEESON CJ: Okay. Now, going back to the statute, your client has pending against him in a Court of Petty Sessions a charge relating to that burglary.
MR YOUNG: That is correct, yes.
GLEESON CJ: What is it doing in the Court of Petty Sessions?
MR YOUNG: It was an offence of burglary which could have been dealt with in the Court of Petty Sessions by the offender’s election.
GUMMOW J: How do we know that?
MR YOUNG: Because if I take your Honours to section 401 of the Criminal Code - it appears at page 17 of the book of materials – there was there provided for a “Summary conviction penalty” in cases of burglary. So burglary has not been dealt with summarily where they are aggravated or where the value of property stolen exceeds $10,000.
GLEESON CJ: But does it require the election of the accused or the prosecution or the consent of the prosecution or both?
MR YOUNG: I understand with burglary that it is the election of the offender. Yes, it is ‑ ‑ ‑
GLEESON CJ: A charge of burglary at the election of offender may be dealt with summarily, regardless of the attitude of the prosecution, provided it is not aggravated. Is that right?
MR YOUNG: No, the prosecution can make submissions as to the appropriateness of dealing with it summarily.
GLEESON CJ: So there is a discretion in the magistrate as to whether ‑ ‑ ‑
MR YOUNG: Yes, there is, yes.
GLEESON CJ: In this case had the magistrate exercised that discretion?
MR YOUNG: Your Honour, the usual way it proceeds is that the indictable charges – in this case the armed robbery charges – were committed for trial in the Supreme Court and the matters in the Court of Petty Sessions tend to get remanded repeatedly until the indictable charges are dealt with. There may not in fact have been any express election, as such, in this case.
GLEESON CJ: I am asking you about a specific charge, the one referred to on page 68 of the application book in paragraph 18, a charge of burglary, and what I want to understand is what was the status of that charge at the time an election was made to deal with it under section 32. Was it a charge that would otherwise have been dealt with in a Court of Petty Sessions or was it a charge that might or might not have been dealt with in a Court of Petty Sessions, depending, for example, on a discretionary decision of a magistrate?
MR YOUNG: Can I answer that this way, your Honour, the magistrate would have had a discretion to commit to the superior court if ‑ ‑ ‑
GLEESON CJ: Had the magistrate, in the case I am asking you about, made any decision on that?
MR YOUNG: Your Honour, I cannot answer that. I was not counsel at that stage of proceedings, but it is my submission that where the matter had effectively been remaining in the Court of Petty Sessions for a period of some 18 months whilst the trial on the armed robbery proceeded, that can only be taken, in effect, as an election for and acceptance of summary jurisdiction. The prosecution had ample time to make submissions that it should be dealt with on indictment or to file an ex officio indictment. In not doing those things, in my submission, it could be taken that summary jurisdiction was being exercised in this case and they are the sort of charges which would ordinarily be dealt with in the Court of Petty Sessions.
GLEESON CJ: Yes, and then we go to 33.
GUMMOW J: Is there not a question about 32(4)? What does the phrase “is to be taken to have jurisdiction to deal with” mean?
MR YOUNG: That simply gives the superior court jurisdiction to deal with simple ‑ ‑ ‑
GUMMOW J: Yes, I know, but what does “deal with” mean?
MR YOUNG: Pass sentence for, I would think.
GUMMOW J: I see.
GLEESON CJ: Is an offence indictable or simple according to its nature? Is burglary a simple offence?
MR YOUNG: No, it is an indictable offence.
GLEESON CJ: So, “simple offences” of the kind referred to in section 32(4) do not include, for example, the offence of burglary on page 68?
MR YOUNG: No, that is correct.
GLEESON CJ: So you can identify a defence as indictable or simple the moment it is committed?
MR YOUNG: Yes, that is correct.
GLEESON CJ: And it never ceases to be indictable, if it is indictable, it is just that there are provisions for indictable offences to be dealt with summarily?
MR YOUNG: Yes, that is correct, but there is, however, a deeming provision which, in my submission, is applicable in this case where an indictable offence which is dealt with summarily is for sentencing purposes to be treated as a simple offence and that is section 673 of the Criminal Code which appears at page 28 of the book of materials.
GLEESON CJ: But that is where a person has been summarily convicted?
MR YOUNG: Yes, that is correct.
GLEESON CJ: How does the concept of summary conviction relation to this section 32 procedure?
MR YOUNG: It is my submission that offences on a section 32 notice remain summary, or the offender is convicted summarily because he is not convicted on indictment. It is my submission that the matter is, at its simplest level, where a person is not convicted on indictment he is convicted summarily. There are, effectively, only two modes of trial in Western Australia, trial of indictment and summary trial, so if there is no indictment ‑ ‑ ‑
GLEESON CJ: Where is the provision for conviction when this section 32 procedure is followed? At what point in the statute do we see the conviction happening?
MR YOUNG: I think it would be section 33(2).
GLEESON CJ: That is the power to sentence.
MR YOUNG: Yes, sentence for “the pending charges the offender is convicted of”.
GUMMOW J: But we asked about conviction. It is not an answer to tell us about the section about sentence.
MR YOUNG: Yes, I appreciate that, your Honour. This section does refer:
to sentencing . . . for each of the pending charges the offender is convicted of and wants dealt with.
GLEESON CJ: How does he get convicted?
MR YOUNG: By way of his plea of guilty to the pending charges.
GLEESON CJ: Is there a statutory provision which provides for the power to convict him or is it simply implied?
MR YOUNG: I think it is simply implied, your Honour. The offender pleads guilty as he would during an indictable offence or an offence on indictment.
GLEESON CJ: Yes, but somebody has to say to him, “You are convicted”.
MR YOUNG: Yes.
GLEESON CJ: That has consequences.
MR YOUNG: Yes. The procedure simply is that the pending charges are read out and the offender enters his pleas to the offending charges and judgment and conviction is then recorded by the judge.
GLEESON CJ: The power to do that is implied in this, is it?
MR YOUNG: Your Honour, I do not know if it appears in the statute, I must confess. I think it must be implied.
GLEESON CJ: The reason I asked the question is because of what you said about section 673. There is just a missing link at the moment which is the statute that provides for the conviction.
MR YOUNG: Yes. Again, your Honour, I am sorry, I do not know how the conviction is provided for and so all I can say is that the offender pleads guilty, the conviction is recorded and then sentence is passed.
GLEESON CJ: The case against you on the point you want to argue is based on section 33(3). What do you say that means?
MR YOUNG: I say that simply applies to appeals against sentence. It does not apply to the sentence to be imposed. I say that by reference partly to section 656A which was the predecessor to section 32 and that appears at pages 8 and 9 of the book of materials. In particular, I refer your Honours to ‑ ‑ ‑
GLEESON CJ: What page again, please?
MR YOUNG: Page 9, section 656A(4).
GLEESON CJ: That was the predecessor.
MR YOUNG: Yes, that is correct. In my submission, section 33(3) is simply intended to replace that provision. Section 656A(4) says that:
When passing sentence . . . the Supreme Court . . . is deemed to be, a court of petty sessions . . . but any sentence so passed shall for the purposes of appeal be treated as a sentence passed following conviction on indictment.
GUMMOW J: What is the section dealing with appeals? It is in the Code, is it not?
MR YOUNG: Yes. In the Code it is sections – I think it is ‑ ‑ ‑
GUMMOW J: It is around 680, is it not?
MR YOUNG: Yes, sections 687 to 688 which are at page 29 of the book of materials.
GUMMOW J: Do we find this distinction there as to appeals from sentence? Where do appeals against sentence ordinarily go on the conviction of the summary – of the simple offence?
MR YOUNG: Ordinarily, they would go to a single judge and that appears in the Justices Act.
GUMMOW J: That is in the Justices Act?
MR YOUNG: Yes.
GUMMOW J: Where do we see that?
MR YOUNG: That is at page 39 of the book of materials.
GUMMOW J: It is section 184, is it not?
MR YOUNG: Yes, that is correct.
GUMMOW J: And “Court” is defined as “the Supreme Court constituted by one Judge” in section 183.
MR YOUNG: Yes, that is correct.
GUMMOW J: Okay. We are talking at 687 about the Court of Criminal Appeal.
MR YOUNG: Yes.
GUMMOW J: What is the subsection in 687 which links up with 33(3) of the Sentencing Act?
MR YOUNG: Because appeals against a sentence passed on indictment are dealt with by the Full Court, by the Court of Criminal Appeal.
GUMMOW J: But whereabouts in 687?
MR YOUNG: Subparagraph (1):
The Full Court (as defined by section 57 of the Supreme Court Act 1935) shall . . . have jurisdiction to hear and determine appeals under this chapter, and the expression Court of Criminal Appeal in this Code shall mean the said Full Court.
GUMMOW J: It is 688, is it not?
MR YOUNG: Yes.
A person convicted on indictment may appeal to the Court of Criminal Appeal ‑ ‑ ‑
HEYDON J: In this case it is subsection (1)(a).
MR YOUNG: Yes.
GLEESON CJ: Now, is the bottom line of your argument that the trial judge or the sentencing judge and the Court of Criminal Appeal proceeded on an erroneous basis as to what was the maximum penalty for that offence of burglary in No 18 on page 68?
MR YOUNG: Yes, of burglary and some other offences.
GLEESON CJ: Just stick with the No 18, it is a pretty clear case, factually.
MR YOUNG: Yes.
GLEESON CJ: They said the maximum penalty for this offence is 18 years and the sentencing judge imposed five years.
MR YOUNG: That is correct, yes.
GLEESON CJ: We see the sentencing judge dealing with it on page 19, do we not, in paragraph 17?
MR YOUNG: Yes.
GLEESON CJ: Where do we see what the sentencing judge thought the maximum penalty was? On your construction of the statute, what was the maximum penalty?
MR YOUNG: Three years.
GLEESON CJ: Right. So the judge obviously thought that the maximum penalty was 18 years.
MR YOUNG: Yes. I should qualify that, your Honour, by saying that it is my submission that the judge was constrained by a jurisdictional limit of three years, the same as a magistrate would have been constrained by it.
GLEESON CJ: So your submission is that the words “for the purposes of an appeal against sentence” in subsection (3) are sections relating to the jurisdiction and procedures concerning appeal and that those words would have no application if, for example, there never was an appeal.
MR YOUNG: No, that is correct. That would be my submission, yes, otherwise the section could have simply said the “purposes of sentence” rather than “purposes of an appeal”.
GLEESON CJ: Or it could have left out the words “for the purposes of” et cetera, altogether.
MR YOUNG: Yes, that is right, but in my submission it is simply designed to ensure that if there is an appeal where someone is convicted of both indictable and simple offences that the appeal is dealt with in the Court of Criminal Appeal rather than one part of the appeal is in the Court of Appeal and other part of the appeal before a single judge.
GLEESON CJ: Is there anything you want to say to us in relation to the other grounds of appeal of what might be called the merits?
MR YOUNG: Yes. Your Honour, my submissions were going to be directed towards this question of the jurisdictional limit.
GUMMOW J: Where is your draft notice of appeal? Page 100, is it not?
MR YOUNG: Yes, page 100 is the draft notice.
GUMMOW J: What we have been talking about would be ground 2(d), would it?
MR YOUNG: Yes, that is correct, your Honour.
GLEESON CJ: There is nothing you want to say in relation to any of the other grounds?
MR YOUNG: Your Honours, I would seek to maintain the grounds of appeal in the written submissions in relation to those. I do not derogate from them, but I was seeking to direct my submissions today to the pending charge procedure.
GLEESON CJ: All right, thank you.
MR YOUNG: Unless your Honours wish to hear from me further in that regard, or ‑ ‑ ‑
GLEESON CJ: Thank you, Mr Young, just as we have the red light flashing.
MR YOUNG: I am sorry?
GLEESON CJ: Your time is up.
MR YOUNG: Thank you, sir.
GLEESON CJ: Mr Bates, we need to hear you only on the ground in paragraph (d) on page 101 of the application book.
MR BATES: Yes, if I could answer two questions that were asked of my learned friend. Firstly, if I can take the Court to application book 5, and at application book 5 is the sentencing remarks of the learned sentencing judge and in the last full paragraph on that page his Honour the learned sentencing judge indicates the penalties for various offences and the last sentence reads:
Among the 31 other offences to which you have pleaded guilty, there are 4 offences of burglary in a habitation, the maximum penalty for which is imprisonment for 18 years –
He goes on to talk about fraud. That is the indictable penalty, so his Honour has clearly sentenced on the basis that the applicable penalty is the indictable penalty. If I can deal with one other aspect and that is in relation to the power to convict. If I can take the Court to page 2 of the book of materials provided by the applicant where the Sentencing Act legislation in sections 31 to 33 is set out and at application book 2 section 33 is set out and what we say is that the power to convict is implied from section 33. That section provides:
When a list of pending charges has been prepared and served, the superior court must ask the offender ‑ ‑ ‑
GUMMOW J: It is a pretty big thing to have legislation where you have to say it implies a most significant step like that.
MR BATES: Yes. It sets out a procedure in section 33 whereby the offender can plead guilty to the pending charges which are listed and then he can ask the Court – I am sorry, the superior court can ask the offender whether he wishes to plead to those pending charges on the list. The offender can then say that he:
wants the superior court to also pass sentence for each of those pending charges –
That is in paragraph (b). Then:
If the Crown consents and the superior court considers that it is just to do so, it may, in addition to sentencing the offender for the original offence –
the superior court can then:
also sentence the offender for each of the pending charges the offender is convicted of and wants dealt with.
So that is in paragraph (2). It refers to him being convicted of those offences as a result of going through that procedure.
GLEESON CJ: Is that a summary conviction?
MR BATES: No. What we say is that these offences are indictable offences and they remain indictable offences. Their character does not change because in this case there is no notation on any of the complaints that a magistrate has determined that the matters can be dealt with summarily, therefore these offences are indictable offences. Their character does not change. They remain indictable offences and the superior court sentences for an indictable offence and instead of there being an indictment the superior court sentences on the list that has been prepared.
GLEESON CJ: In some jurisdictions in Australia there are three categories of offences. There are indictable offences, summary offences and what are called indictable offences capable of being dealt with summarily. Are we in the intermediate category here?
MR BATES: Yes. We are in the category here of offences that are indictable offences that may be dealt with either on indictment or summarily in the Court of Petty Sessions and our argument is predicated on the basis that burglary is an offence that has a summary conviction penalty and in relation to that summary conviction penalty the ‑ ‑ ‑
GUMMOW J: This was section 401 we were looking at, was it not?
MR BATES: That is right, 401, “Burglary”. As your Honours have previously seen, there is a summary conviction penalty listed there and then if I can take the Court to section 5 of the Code that sets out what those words “Summary conviction penalty” mean. If I can just turn up the summary conviction penalty in the book of materials - it is at page 13 of the book of materials. I will read it out:
The words “Summary conviction penalty” appearing after a provision of this Code mean that where a person is charged before a court of petty sessions with an offence under that provision and the court –
so the onus is on the court –
having regard to the nature and particulars of the offence, and to such particulars of the circumstances relating to the charge and the antecedents of the person charged as the court may require from the prosecutor, considers that the charge can be adequately dealt with summarily, the charge may be dealt with summarily at the election of the person charged, and the person is liable on summary conviction to the penalty set out after the words “Summary conviction penalty”.
GUMMOW J: We can read that, but we have to look at section 3 as well, do we not, which is what we were trying to get out of you.
MR BATES: Yes. In the respondent’s book of materials in section 3 the types of offences are set out, namely:
crimes, misdemeanours, and simple offences.
Crimes and misdemeanours are indictable offences . . .
An offence not otherwise designated is a simple offence.
All these offences that were dealt with, including burglary, and there were a number of others, fraud and threats to injure, they were all indictable offences because they were all expressed to be crimes in the ‑ ‑ ‑
GLEESON CJ: Does it amount to this, that even if the applicant had wanted these offences to be dealt with summarily it would have required a decision by a magistrate that they could adequately be dealt with summarily.
MR BATES: That is correct, your Honour, yes.
GLEESON CJ: And no such decision had ever been made.
MR BATES: Yes. On the complaints that have been put in the application book there is no notation on those complaints indicating that such a decision had been made.
GLEESON CJ: So, does it come to this, that these were all indictable offences that were capable of being dealt with summarily if a magistrate in his or her discretion had decided to deal with them in that way but no such decision was ever made and at the time of the section 32 procedure the question whether they would otherwise have been dealt with summarily was unresolved?
MR BATES: That is correct, your Honour, yes. Their character – they were indictable offences because they were crimes in accordance with section 3. The procedure for the summary conviction penalty in section 5 had not been availed of because no decision had been made by the magistrate. They retained their character as indictable offences and they were dealt with in the superior court not on indictment but on the pending charge notice procedure which had the effect of being the indictment and therefore they were liable to the indictable penalty. They were indictable offences. They were dealt with in the superior court. Instead of there being an indictment there was a notice in accordance with the Sentencing Act legislation and, therefore, their character never changed and they were sentenced as indictable offences and, therefore, the offender was liable to the indictable penalty.
GLEESON CJ: This can hardly be a novel question. This procedure has been around for a long time, as I understand it.
MR BATES: Yes, it has. It has been around since 1986.
GLEESON CJ: My question to you was, is there no decision on this point of the Court of Criminal Appeal of Western Australia before this one?
MR BATES: There is a decision. There is a decision of Davies which was under the old Act. The old section was section 656A of the Criminal Code. It came in in 1986. There is a decision of Davies ‑ ‑ ‑
GLEESON CJ: Where do we see that?
MR BATES: The decision of Davies is in the book of materials 101. I could indicate to your Honours that there is a decision of Davies under the old legislation which was substantially in the same terms as the current legislation.
GUMMOW J: What about Rafferty?
MR BATES: Then there are later decisions of Rafferty and also Bromfield and now this decision that is under appeal. So, the Court of Criminal Appeal has on three prior occasions, once under the old legislation and twice under the new legislation, looked at this question.
GUMMOW J: I have just been looking at paragraph 16 of Rafferty – the electronic citation is [2002] WASCA 312, paragraph 16.
MR BATES: That is correct.
GUMMOW J: It does not explain it very fully.
MR BATES: It starts at paragraph 15:
In my view, the effect of s 32 and s 33 of the Sentencing Act is that a superior court, sentencing for indictable offences referred to it on notice, has full power to sentence as a superior court exercising its ordinary jurisdiction, despite the absence of an indictment. By s 33(2) the court’s sentencing power in relation to a pending charge, as defined by s 31, is equated with the jurisdiction of the court in respect of a charge of an offence otherwise before the court on indictment.
It then goes on to refer to the appeal provisions:
for the purpose of an appeal –
it is treated as being a:
conviction on indictment.
Then in paragraph 16 the court there deals with the summary jurisdiction issue:
Where such an indictable offence is capable of being dealt with summarily by virtue of s 5 of the Criminal Code, the superior court sentencing for a pending charge is not restricted to the “summary conviction penalty” . . . Because the superior court is not a Court of Petty Sessions ‑ ‑ ‑
GLEESON CJ: That demonstrates, does it not, that section 33(3) is something of a furphy, a red herring. If you look at paragraph 16 of this reasoning it does not put it on the basis of section 33(3) at all, does it?
MR BATES: What is your Honour saying?
GLEESON CJ: Paragraph 16 in what you are reading is the reason that is given why the maximum penalty is as you say it is and it is not a reason related to section 33(3).
MR BATES: No, it is not. The reason is that there is never any election and it never becomes a summary offence. It retains its character as an indictable offence and it is not a summary conviction before a Court of Petty Sessions. It is a conviction on indictment before a superior court where the notice replaces the indictment, it is the form and section 33(3) is just part of the package that gives a right of appeal for matters dealt with by pending charges.
GLEESON CJ: Exactly. So the first complete sentence on page 32 of the application book in the present case rather tends to send you off on a false trail.
MR BATES: Yes, it does because that was a decision of Chief Justice Malcolm but the other judges basically accepted the reasoning in Rafferty and adopted that particular reasoning. If I can take the Court to the reasoning of the other judges at application book 32.
GUMMOW J: But for the present case and this burglary, the hinge of it all in section 401 is the phrase “is guilty of a crime”.
MR BATES: Yes, that is right, and crime is an indictable offence unless ‑ ‑ ‑
GUMMOW J: That takes you back to section 3.
MR BATES: Takes you back to section 3 and then it can only be dealt with summarily . The summary conviction penalty only ‑ ‑ ‑
GUMMOW J: No, it takes you to 5.
MR BATES: That is right. The summary conviction penalty only applies in circumstances where a magistrate considers that they can deal with the matter. Then the summary conviction penalty applies and it become a summary offence and in those circumstances it is an indictable offence dealt with summarily as opposed to an indictable offence dealt with in a superior court not on indictment but by way of this notice procedure under section 32.
GLEESON CJ: Is another way of putting it this, that what is necessary in order to attract the lower maximum penalty is a discretionary decision of a magistrate that that is adequate?
MR BATES: That is correct, your Honour, yes, and in this instance, on the face of the complaints there is no notation and there is no evidence in the application book to suggest that that decision has been made by a magistrate.
GUMMOW J: That is the end of it.
MR BATES: That is correct, your Honour, yes.
GUMMOW J: Though not necessarily for the reasons given.
MR BATES: No. The Court did in other passages. They basically adopted the reasoning in the earlier decision of Rafferty, but they have picked out that aspect of – the appeal aspect – but that appeal aspect is really only part of it and the real reasoning lies in whether the election or whether the magistrate has determined it could be dealt with summarily and whether it thereby changes its character from an indictable offence to an indictable offence that can be dealt with summarily. May it please the Court.
GLEESON CJ: Yes, thank you, Mr Bates. Yes, Mr Young.
MR YOUNG: Thank you. Your Honour, in relation to the question of the offender’s election, unfortunately it has developed a rather shorthand way of dealing with these matters in that counsel will generally say to the magistrate, “We seek to have the indictable charges dealt with by way of a plea of guilty and the other charges under a section 32 notice” and that is simply noted on the complaint and that is as far as it goes. So there is commonly a case that no express election is made and the magistrate does not actually say in so many words, “Yes, I accept jurisdiction”. It is my submission that the very use of a section 32 notice and the fact that the DPP prepares a notice and presents it to the Court indicates that it is to be dealt with on a summary basis. It can have no other effect, in my submission.
Further, in the case of Davies – I take your Honours to page 119 of the book of materials. His Honour Justice Murray – this deals with section 656A, page 119. His Honour, in fact – this is at the very bottom of the page – indicated that the use of a pending charge procedure in fact renders any election null and void in any event. At the very bottom of the page his Honour said:
If dealt with in the District Court, it is clear to me that no legal effect is given to any prior election which may have been made to have some or all of the offences covered by the section dealt with summarily.
GLEESON CJ: Whether that is right or wrong, for many years now the courts in Western Australia have been approaching it on the basis that a section 32 procedure does not fix the lower maximum penalty, whether they are right or wrong about that, so anybody who – at least for the last 10 or 15 years has advised a client to adopt the section 32 procedure has done so in the light of that knowledge.
MR YOUNG: Yes. That is probably correct, your Honour. Mr Herbert was the first person to ever receive, as far as I know, penalties above the summary maximums, but I take your Honour’s point. My learned friend says that these indictable charges, dealt with in a superior court, but in my submission, they are still summary convictions because there is no indictment there and, again, section 673 deems that to be a conviction of a simple offence.
GLEESON CJ: But nobody has made a discretionary decision that the lower maximum penalty is adequate. Indeed, on the contrary. The only judges who considered the matter in this case fixed penalties above the maximum.
MR YOUNG: Yes. If that is the case, your Honour, then the offender in this matter has been deprived of his election, effectively, to have the matter dealt with summarily. These are matters which in the ordinary course of events there would be no difficulty whatsoever in accepting summary jurisdiction. I say that as a matter of experience, your Honour, but they would ordinarily be dealt with summarily.
We have here a penal statute which is being interpreted in such a way as to apply heavier penalties than might otherwise be applied and in my submission that is quite contrary to principle. It is also the case that in parliamentary debates it was indicated there that the Attorney-General – this is at page 7 of the book of materials – was of the view of that the lower penalties should be applicable. At page 7 the Attorney-General said that it is to be taken that:
The District Court, similarly, will impose the standard which the lower court would have delivered.
GLEESON CJ: Is that in a case where the lower court has made a decision that the lower penalty is adequate?
MR YOUNG: That is not specified, but again, as I say, a shorthand procedure has developed.
GLEESON CJ: When the prosecution is considering what attitude it will adopt in argument in the lower court to an application for the matter to be dealt with summarily does the prosecution consult with the victims?
MR YOUNG: I could not tell you that, your Honour. I would assume so, but could I indicate that the prosecution has the right to ask that matters be dealt with on indictment so when defence counsel is asking for a section 32 notice the prosecutor can, and often does, say, “Well, we believe that some offences should be dealt with on indictment for these reasons.” If that is not
done the complaints are sent to the DPP. The DPP is then able itself to consider preparing an ex officio indictment. If they do not simply put the complaints before the superior court judge it is dealt with on those complaints and that again is a summary conviction, in my submission.
GLEESON CJ: Thank you, Mr Young. We will adjourn for a short time to consider the course we will take in this matter.
AT 10.30 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.38 AM:
GLEESON CJ: The principal ground of appeal sought to be argued on behalf of the applicant is that contained in paragraph (d) on page 101 of the application book. Having considered the detail of the relevant statutory provisions beginning with sections 3 and 5 of the Criminal Code, we are of the view that the Court of Criminal Appeal was correct to conclude that the maximum penalties for the offences in question were as stated.
We do not accept that the reason for that conclusion is to be found in section 33(3) of the Sentencing Act 1995. In that respect we refer to Rafferty v The Queen (2002) 135 A Crim R 282. We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave. The application is dismissed.
We will adjourn to reconstitute.
AT 10.40 AM THE MATTER WAS CONCLUDED
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