Im v The Queen

[2020] HCATrans 194

[2020] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S124 of 2020

B e t w e e n -

IM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 2020, AT 12.26 PM

Copyright in the High Court of Australia

MR I.M. NEIL, SC:   If the Court pleases, I appear with my learned friend, MR C. PARKIN, for the applicant.  (instructed by Birchgrove Legal)

MR L.K. CROWLEY, QC:   May it please the Court, I appear with my learned friend, MR B.J. POWER, on behalf of the respondent.  (instructed by Director of Public Prosecutions (Cth))

NETTLE J:   Yes, Mr Neil.

MR NEIL:   Your Honours, may we begin by confronting two problems.  The first is that our application was made substantially out of time and we apply for an extension of time.  The respondent has been good enough to tell us this morning that it consents to that application.

NETTLE J:   Time is extended.

MR NEIL:   If the Court pleases.  The second problem is that, as your Honours will have seen, two of the three points in respect of which the applicant seeks special leave are new points not raised below.  Indeed, we accept that the applicant acquiesced in the way in which both of those matters were dealt with below.  It follows, again, we accept, that we will need to demonstrate that in relation to those two points this is an exceptional case.  In that regard we point first to the striking youth of the applicant, and to the marked heaviness of his sentence, a heavy sentence that, if either of the two points is sound, is vitiated by an error of law.

In addition, we make these three points.  There is no new fact relevant to the disposition of either point that is now sought to be, or that could have been proven below.  The proceedings below were conducted on agreed facts.  Both proposed new grounds raise pure questions of law.  Second, there was no forensic benefit to the applicant in not raising these points below, and no such benefit has accrued to him as a consequence of not doing so.  Equally, the converse position is true.  There is no forensic disadvantage to the Crown in raising them now.

Third, as we have submitted in writing and hope to develop this morning, both of the new points raise questions of general public importance.  If it please, those are the four considerations that, in our submission, together make this an exceptional case so as to justify a grant of special leave in relation to what are avowedly new points and that…..what we had wished to say on that topic by way of supplementing what we have said in writing.

May we next turn to develop the proposed grounds.  Can we say at once that we had not proposed to say anything this afternoon in relation to ground 3 to supplement what we have said in writing in relation to that ground?  Our oral submissions, unless your Honours had anything of us, focus on grounds – proposed grounds 1 and 2. 

May we reverse the order in which we dealt with those grounds in the application and go first to ground 2.  Ground 2 focuses on section 20C of the Crimes Act (Cth).  As your Honours will have seen, the text of that provision is reproduced on page 224 of the application book.  The error to which ground 2 refers is located at the first sentence of paragraph 43 of the reasons of the Court of Criminal Appeal.  That is on page 192 of the application book.

GORDON J:   Mr Neil, could I ask a question about that?  Is that the only place that I could find where there was consideration of 20C ‑ ‑ ‑

MR NEIL:   Yes, in the judgment of the Court of Criminal Appeal.  The sentencing judge dealt with it in a similar way, we would submit, on page 27 of the application book in paragraph 19.

GORDON J:   What was the submission that was put about the way in which it sits with 19AG and then its interaction with the State provision?

MR NEIL:   No submission was put on that point, essentially because it appears to have been accepted, we now submit wrongly, accepted on all sides that the scope of section 20C was limited such that it was confined to the subject of the range of available sentencing options with the result that it was – it was thought to have no scope for operation once options other than imprisonment were ruled out.  That is the premise that, in our submission, underlies the way in which the sentencing judge dealt with section 20C at paragraph 19 on page 27 and the Court of Appeal did so just at that one point in the first sentence of paragraph 43 on page 192.

We accept, of course, that we, as we said earlier, acquiesced in the section 20C consideration going forward on that basis.  But it was, we now submit, a misapprehension – a misapprehension about the scope of the discretion or a misapprehension of the practical effect of exercising the section 20C discretion, a misapprehension that it was limited to the subject matter of the range of available sentencing options.

Our contention now - the applicant’s contention now is that section 20C is not so limited and that it does not operate in that way.  The point that he seeks special leave to make in this Court is that, whereas here the conditions prescribed in section 20C exist, the sentencing court relevantly has a discretion to punish a federal offender:

as if the offence were an offence against a law of the State or Territory. 

The focus, in our submission, is on the words “as if”.  By those words, section 20C is a deeming provision expressed in what we submit is strikingly powerful and direct language.  For example, it uses materially different language and has a materially different operation than subsection 68(1) of the Judiciary Act, which is discussed in Hili, to which our learned friend refers in his response.

Our submission is that if the section 20C discretion exists and is exercised, the words “as if” operate to create a counterfactual state of affairs within which the offender is to be treated for the purposes of punishment as being no longer a federal offender on whom the court is imposing a federal sentence.  Instead, the offender is transformed by the operation of the section 20C discretion into a State offender being sentenced for a State offence.

GORDON J:   Two questions, Mr Neil:  the…..between 19AG and 20C?

MR NEIL:   Yes, your Honour.  May we come to that now?

GORDON J:   …..and simply having resolved that question of construction and operation the second question is:  having brought that down to, in effect, the State level, what would be the difference here, given that this person was sentenced by reference to the relevant New South Wales provisions for dealing with or taking into account the youth of your client?

MR NEIL:   If your Honour pleases.  Could we deal with those matters in the order in which your Honour has raised them with us.  First, the interaction between section 20C and section 19AG.

GORDON J:   Intersection is probably better.

MR NEIL:   Intersection, I was hesitating, your Honour, thank you, “intersection” is a word that we would gratefully adopt. It is not really a question of section 20C displacing section 19AG as the respondent has suggested, and we have – it is rather this.  Our argument is that inside the counterfactual created by the exercise of the section 20C discretion, those provisions of the Crimes Act (Cth) that, by their terms, apply only to federal offenders and only to federal sentences, do not apply, and they do not apply according to their terms.  Section 19AG is one of those provisions. 

In other words, a court does not sentence an offender as if he was a State offender by applying to him statutory provisions like section 19AG that apply only to federal offenders and that is the way in which they intersect.  Could we then point to two illustrations - section 19AG is one - two illustrations that point to the practical injustice experienced by the applicant in this case as a consequence of the failure to appreciate the true nature and extent of the section 20C discretion. 

They also, in our submission, assist to make good the public importance of the point, general importance of the point.  The first illustration focuses on section 19AG, which, as your Honours have seen, is in Division 4, Part 1B of the Crimes Act, and we have – I hope your Honours have a bundle of additional statutory provisions that we recently filed - yesterday, I think, I am told.

NETTLE J:   No, the answer is we do not.  Thank you - we are right to go, thank you.

MR NEIL:   Thank you, thank you, your Honour.  These are extracts from the Crimes Act (Cth).  Could we start, using the paginations at the top right‑hand corner, at page 3 – the interpretation provision, section 3.  On page 4, your Honours will see a definition of “terrorism offence”.

NETTLE J:   Yes.

MR NEIL:   We fall within subsection (b).  The offence with which the applicant was charged was against Part 5.3.  But, will your Honours be good enough to note that “terrorism offences” are defined by reference to specific provisions of federal statutes.  Then, turning to page 5, your Honours have Part 1B, Division 1.  In section 16, could we draw attention to the definitions of “federal offender” and “federal sentence” at the foot of the page. 

Then, if your Honours would be good enough to go to page 8, at about point 6, your Honours will find definitions of “State offence” and “State offender”.  Then, may I ask your Honours to turn to page 14.  There your Honours will find Division 4 which deals with, as your Honours will see, the fixing of non‑parole periods.

May we draw attention to the chapeau to subsection (1) of section 19AB which introduces the subject matter of that provision and that which follows, in our submission, as being non‑parole periods fixed “in respect of a federal sentence or federal sentences”.  That focus – exclusive focus – is maintained throughout Division 4. 

Section 19AG begins on page 19.  May we draw attention first to subsection (1) which deals with the application of section 19AG.  Terrorism offences attract that provision – as your Honours will see in subsection (b) at the top of page 20.  Again, all federal offences and, necessarily, and, exhaustively, so.

Then, subsection (2) is the provision that fixes minimum non‑parole periods for terrorism offences.  Your Honours will note in the last sentence of subsection (2), an explicit reference to “federal sentences” which, in our submission, indicates that subsection (2) does not stand alone – in effect, floating free – but like the rest of Division 4, it is confined in its operation to federal sentences – a point that takes up the definition of “terrorism offence” which is the hook that brings section 19AG into play.

Now, it follows, in our submission, that by the terms of section 19AG it was incapable of applying to the applicant if the – or it would have been incapable of applying to him if the section 20C discretion had been exercised in respect of his punishment because then he would not be treated as a federal offender offending against a federal offence and facing the imposition of a federal sentence.  He would have been a State offender being sentenced for a State offence.

In practical terms, if the discretion – our submission is if the discretion had been properly understood and exercised in his favour then the applicant would have avoided the effect of section 19AG(2), the 75 per cent non‑parole requirement. 

Your Honours will have seen in the material that under the law in New South Wales that the relevant provisions in New South Wales, the Crime (Sentencing Procedure) Act 1999, copy on page 235, there was a material difference, in effect, that non‑parole period was two‑thirds rather than 75 per cent.  There was a capacity to bring in special circumstances engaged by the applicant’s youth.

We also wanted to point to Division 5 of the Crimes Act (Cth) which deals with parole provisions which would have been engaged if the section 20C discretion had been exercised in his favour.  We draw attention particularly to the fact that it is the Attorney‑General in whom responsibility for decisions about parole inheres and under the Crimes Act (Cth) there are special rules for offenders convicted of terrorism offences that have the effect of permitting parole only if the Attorney‑General is satisfied that exceptional circumstances are demonstrated.  The same provisions – they are materially different provisions than those that apply in New South Wales. 

Now, I am running short of time.  The double punishment – that is what we wish to say in connection with the – to develop ground 2 – maybe draw particular attention to the submissions that we have made in paragraphs 29 and following of the – 29 to 33 of our application in connection with the reasons why special leave is warranted in relation to ground 2. 

So far as ground 1 is concerned we have said what we wished to say, having regard to the time - we have said what we would wish to say in writing.  The same pertains in relation to ground 3.  Unless your Honours had anything more of us, those are the submissions we wished to make by way of supplementing our written submissions.

NETTLE J:   Thank you very much, Mr Neil.  Mr Crowley.

MR CROWLEY:   Your Honours, our submission is that section 20C, this is dealing with the ground 2 point, does not have the interpretation or application that the applicant contends for.  Our submission is that it is an enabling provision and has always been understood to be an enabling provision which, in particular, amongst other things, enables a sentencing court dealing with a child or a young offender for a federal offence to apply a sentencing option which may be available under a relevant State or Territory law, for example, a State law which might provide for some form of detention order for a child, or also a State law which may provide for diversion from any such type of orders. 

NETTLE J:   Would that mean, for example, that if the matter were being heard in Victoria, it would be open to the court under section 20C to impose a community‑based order rather than a sentence of imprisonment?

MR CROWLEY:   Yes, that is potentially the effect of 20C.

NETTLE J:   Then how would that fit with the mandatory three‑quarters non‑parole period?

MR CROWLEY:   At the moment, what I am addressing, your Honour, is the general way.  What we say about 19AG is that that provision and its operation for terrorism offences provides the sole basis upon which a non‑parole period is to be imposed and calculated where a sentence is imposed for a terrorism offence.  Our submission is, in contrast to what has been put by the applicant, 20C does not transform the sentence into a counterfactual scenario where the sentence imposed becomes a State sentence, or a Territory sentence.

NETTLE J:   So you would say 20C is excluded, in effect, in relation to non‑parole periods, where ever a sentence of imprisonment is imposed for a terrorism offence?

MR CROWLEY:   Yes, that is our submission.

NETTLE J:   But if the sentencing judge, say it is a State sentencing judge, were to take the view that something other than a custodial disposition were appropriate, say a community‑based order, what then happens to the non‑parole requirement of section 19AG?

MR CROWLEY:   Section 19AG only has effect if the sentence is one of imprisonment.  So we get there from section 16 in the supplementary provisions that have been provided to the Court by the applicant ‑ ‑ ‑ 

NETTLE J:   Yes.

MR CROWLEY:   Section 16 defines the term “sentence”.  Your Honours will see that on page 8 of the additional materials.

NETTLE J:   Yes.

MR CROWLEY:   “Sentence” in relation to section 16B to 19AZD means a sentence of imprisonment so when we come to 19AG and the term “sentence” is used, it is implicit by that definition that one is talking only about a sentence of imprisonment.

NETTLE J:   So you say 19AG is a specific provision dealing with a specific matter which does, in effect, to that extent, override the generality of 20C?

MR CROWLEY:   We do, your Honours.  Our submission is entirely that, that 20C is a general provision, 19AG is a specific provision which makes express allowance for a particular type of sentence to be imposed on a federal offender and a non-parole period that must attach to that sentence, being a sentence of imprisonment.

What we say, your Honours, is that the commencement point is ‑ in contrast to the applicant’s submission, it always remains that the person is a federal offender who is sentenced for a federal offence and receives a federal sentence.

NETTLE J:   Yes.

MR CROWLEY:   So whilst 20C may operate to pick up a number of different types of potential procedures or principles, or even sentencing options under State law, it can only do so, in our submission, to the extent that one is still looking at a federal offender, a federal sentence and only to the extent that those provisions would not otherwise be provided for or inconsistent with what the Commonwealth has already provided within Part 1B.

NETTLE J:   Is that because section 19AG is part of the provisions which inform the Commonwealth sentence for the Commonwealth offence?

MR CROWLEY:   That is so, your Honours.  So, from our submission, the starting point, one has to commence with the offence provisions and the maximum penalty for the provision, which here is life imprisonment.  One cannot start at 20C and then commence by looking at this offence as if it were a State offence.

The maximum penalty is set under the Commonwealth law.  The starting point means then, in our submission, that one commences with, it is a federal sentence being imposed upon a federal offender.  If that is so, one then looks to Part 1B for what are the principles that apply for determining what the sentence is that should be imposed.

That means, in our submission, that Part 1B in its entirety applies.  Section 16A, in particular section 16A(1), requires the sentencing court to impose a sentence of “a severity appropriate in all the circumstances” and it is only when one looks at that and section 17A of the Crimes Act, which requires, in effect, a sentence of imprisonment can only be imposed if it is the only sentencing option available in the circumstances, if those requirements are satisfied, then the sentencing court will be imposing a sentence of imprisonment, a federal sentence of imprisonment, and that is implicit ‑ ‑ ‑

GORDON J:   Where does 20C fit into that analysis?

MR CROWLEY:    Section 20C would fit in, your Honour, in terms of looking at section 16A when one considers what is a sentence of severity appropriate in all the circumstances.  Section 20C would allow the sentencing court to consider where there are other sentencing options available under the State or Territory law as alternatives to a sentence of imprisonment – for example, a community service order or probation order, or some other form of order.

That is why we say, in our submission, your Honours, that when one commences with the analysis of it being and always remaining a federal offence and a federal sentence, one must necessarily go to Part 1B and 20C, which is within Part 1B, of course must be construed in context as part of that whole section of the Act.

What we say, your Honours, is then when one looks then and follows through, the consequences of this being a federal sentence on a federal offender, that has relevance to other provisions.  So, for example, our learned friends have pointed to the control order that might be made at the completion of a sentence imposed upon an offender for a terrorism offence.  That must follow if the person has been sentenced for a federal offence. 

If the argument put by the applicant were to be accepted, there would be some inconsistency, perhaps, where a person might be sentenced for a terrorism offence but, nevertheless, not amenable to control order.  But, also, the same type of argument would apply in terms of parole.

We understand our friends this morning have submitted that the parole regime would be applicable even if 20C allowed one to impose the non‑parole period – or the minimum term under the State legislation.  Our submission is that in fact shows the contrary to the argument that is put.  What that shows is – picking one part of the State law but, nevertheless, returning back to the Commonwealth law which is contrary to the argument put – that this is somehow transformed to being a State offence.  If that was so…..would be under the State laws – not under the federal laws.

GORDON J:   Can I ask one question about that?

MR CROWLEY:   Yes, your Honour.

GORDON J:   Section 20C requires, not only in terms of punishment but also at the trial of the person as if it was a State offence ‑ ‑ ‑

MR CROWLEY:   That is right.

GORDON J:   Does that fit with your argument?

MR CROWLEY:   I am sorry; I did not hear the last part of that.

GORDON J:   Section 20C applies – or is capable of applying – not just a punishment but the trial of the juvenile as if it is a State offence.

MR CROWLEY:   Yes.

GORDON J:   Does your construction fit with both limbs?

MR CROWLEY:   Yes, your Honour.  So, our submission is that, when one looks at 20C and what it provides for, where it refers to “may be tried”, that would encompass picking up potentially the mode of trial or other provisions in relation to the conduct of the trial that might apply under a State law where a child or a juvenile offender is to be tried for an offence.

NETTLE J:   Majority verdict?

MR CROWLEY:   Perhaps not majority verdict because that would be inconsistent with section 80 of the Constitution.

GORDON J:   That is why we are asking.

MR CROWLEY:   That is another example that we would say, your Honours, is that section 20, in its general terms, does have limitations.  So, if one were to read it simply alone, the ambiguity that is contended for by the applicant might be said to arise.  But, of course, one cannot read it in isolation.  It is part of a regime, a part – not a complete regime, we accept – but it is part of the Crimes Act, Part IB, which has provided otherwise for certain consequences and certain methods for Commonwealth sentencing procedure. 

It is also part of the Commonwealth law in general, which would include where other provisions are made there is contrary federal law which would oust the operation of a State or Territory law that might be picked up if one were just looking at 20C in isolation.  Your Honours, we submit then if – looking at 20C, other examples that would arise, for example, that 20C also refers to “otherwise dealt with.

Now, another example might be where a State or Territory law makes provision for diversion from the criminal justice system or other types of dealing with young people, those type of provisions might also apply, and of course, here, in this case, we agree that the court at first instance and the Court of Criminal Appeal were correct to note that the principles, general principles under the relevant State law for the sentencing of young people could also apply.

But again, what we submit is that that would necessarily be subject to where the Commonwealth, for example, section 16A, has otherwise provided for what is to be taken into account and, indeed, under section 16(a) must be taken into account when sentencing for a federal offender.

Your Honours, we have referred to the Court’s decision in Hili v The Queen and Jones v The Queen, and we do draw the Court’s attention particularly to those paragraphs in the majority judgment at paragraphs 21 and 22 where the Court considered section 68(1) of the Judiciary Act.  Our submission is, your Honours, that section 20C of the Crimes Act operates in a similar type of fashion to section 68(1). 

These provisions are not the only types of provisions that would operate to pick up State or Territory laws and apply them as surrogate federal laws but, in our submission, that is the effect, and the analogous argument and result from section 68(1) as discussed in Hili and Jones applies in this case to 20C and in particular, what we refer to there, your Honours, is that the Court concluding that Part 1B, which did make exhaustive provision for the setting of non‑parole periods was, in effect, a complete regime and did not allow any State law to be picked up where the State law would be to the contrary. 

What we say here, your Honours, by analogy, is the same applies to section 19AG.  It cannot be picked up and applied so that, that is, a State law cannot be picked up and applied so that one looks elsewhere for the law that would have set the non‑parole period because the Commonwealth has already expressly made provision for that in relation to this type of offence and, therefore, 19AG(2) is the law that applies.

Now, your Honours, our submission in respect of the ground 2 point, we say that here where the ground 2 argument was not picked up below and was not agitated below, that does have consequences, because what we have, in effect, in our submission, your Honours, is really a – if our fundamental point is accepted, that this remains as a federal sentence, then one must start at least with Part IB, then our submission is that one does not get to look at the argument raised by the applicant, but also the concession or – I should not say “concession”, the approach below of not raising this issue is a fatal one, in our submission, in terms of this Court having a special leave question to consider, because what was accepted below is that a sentence of imprisonment was the only appropriate sentencing option. 

In our submission what that implicitly means is that it was accepted by the applicant that section 16A and 17A of the Crimes Act (Cth) insofar as they refer to “a sentence appropriate in all the circumstances” and “a sentence of imprisonment can only be imposed if it is a sentence of last resort”, those things being satisfied – and accepted as being satisfied – Part IB applied and, therefore – following it through in context when one comes to look at the non‑parole period – 19AG(2) also applied. 

The point now raised, your Honours, is seeking to depart from that concession but raising a point which, in our submission, really now becomes a theoretical one because it was always accepted at the outset that this was a federal offence and a federal offender and that that was the correct position.

NETTLE J:   I suppose that was…..non‑parole period, potentially.

MR CROWLEY:   If the argument is put and it is put as a discretion – we do not submit there is a discretion – we do not accept that as being the appropriate term.  Our submission is it is an enabling provision, so it allows the court to look at picking up those other sentencing options.  But the discretion ultimately lies in section 16A(1) – what is the sentence appropriate in all the circumstances and 17A – whether a sentence of imprisonment is the only appropriate sentence that may be imposed.

NETTLE J:   I was simply putting to you that if one adheres to the acceptance that a term of imprisonment was essential, but Mr Neil is correct about the application of section 20C, then it is not academic.  It could potentially affect the non‑parole period whilst leaving the sentence intact.

MR CROWLEY:   Yes, I accept that, your Honours, but the premise for that is the argument that this is somehow transformed into a State sentence rather than remaining a federal sentence to which, on our argument, there is no escaping from Part IB having application – and that includes 19AG because it does provide that complete regime for the setting of a non‑parole period.

NETTLE J:   And no escaping from Hili?  

MR CROWLEY:   That is so, your Honours.  Your Honours, can I just take the Court to the second reading speech which we have provided – page 290 of the application book.  Your Honours, the table that is set out there which Sir Garfield Barwick, the then Attorney‑General, referred the Parliament to, your Honours will see at the bottom of the page where clause 19 is referred to – section 20C.  There is a paraphrase, or a brief description of the effect of the amendment. 

What it says about it, in our submission, is consistent with the interpretation of 20C that we now put and that is further elaborated on, on page 292 of the application book, your Honours, in the left‑hand column.  In the second paragraph, clause 19 is referred to.  The first part deals with another amendment but the second time clause 19 is mentioned – which refers to the treatment of juvenile offenders – goes on to the bottom of that paragraph to deal with this and make plain it is an enabling provision.

What we submit there, your Honours, when looking at how it is described, it contemplates the scenario where a federal government does not have its own prisons, does not have its own detention centres or juvenile justice programmes, it must necessarily rely upon the co‑operation of the States and Territories to enable those type of similar provisions and allowances under the State laws to apply to a federal offender. 

In our submission, that is precisely what the provision does in that respect and how it would operate here.  It would operate so that, as we have submitted, the way in which someone might be tried, where they might be detained as a young person, how they might be dealt with in terms of their custody or incarceration and, also, the sentencing options that might be available or rehabilitation options or, as we submit, diversion options, because the Commonwealth does not have its own schemes for that, that is what 20C does to pick up and apply those as if they were effectively surrogate federal laws, but it does so always on the basis that the person is

sentenced for a federal offence.  It is a federal sentence and remains one on a federal offender.

Your Honours, in terms of the other arguments, we do not seek to further address ground 3.  We rely on our written submissions.  Ground 2, again, your Honours, we rely upon what we have submitted there.  In our submission, this is clearly a case where the Court was entitled to have regard to the overt act.  In particular, it is referred to at paragraph 30 in the sentence at first instance where in the table there it was described what the overt act was and, in our submission, that was the correct approach and that was the approach here taken by the Court of Criminal Appeal, and one cannot infer that there has been some double counting or double punishment as a result.  If your Honours please.

NETTLE J:   Thank you very much, Mr Crowley.  Mr Neil, is there any reply?

MR NEIL:   Six short points, if we may.  First, our learned friend has correctly acknowledged that the respondent’s case hinges on the proposition that this was a federal sentence and the applicant was a federal offender.  Of course, that is true, but if our construction of section 20C is correct, and the discretion, as we characterise it, to which it refers had been exercised in favour of the applicant, then neither of those things would at law have been true.

NETTLE J:   Would it follow from your proposition that if, say, the maximum sentence for a terrorism offence in the State were 50 years, but under the Commonwealth law was life, it would be open to the sentencing judge to work on the basis of the maximum penalty of 50 years?

MR NEIL:   Yes, if the sentencing judge had first exercised the section 20C discretion.

NETTLE J:   That would be contrary, in effect, to Hili, would it not?

MR NEIL:   In our submission, no, because Hili turns on the language of section 68(1) of the Judiciary Act which does not use the expression “as if” or, in our submission, an analogue of it.  It refers to the State laws, substantive and procedural, and provides that those laws shall “apply and be applied . . . so far as they were applicable” to people charged with certain federal offences.  That is a very different provision.  Hili, in our submission, is not directly on point.

That was the second of the points we would wish to make in reply.  The third is this.  In our submission, the respondent’s submissions as to the particularity of section 19AG and the generality of section 20C sit

uncomfortably with two contextual considerations.  One is that section 20C is in Part 1B, the same part of the statute as section 19AG.  The second is the way in which section 19AG deals with certain other provisions of the Crimes Act (Cth).  Your Honours will see that in section 19AG(5) on page 21 of the supplementary bundle.  Section 20C, as your Honours will there see, is not one of the provisions there mentioned.

The fourth point we would wish to make in reply relates to the respondent’s reliance on section 16A, which is on page 10 of the supplementary bundle.  That is a provision which applies in terms to federal offences. 

Perhaps the last two points we wish to make are these.  One, the submissions we have made about the parole provisions, Division 5, did not capture the way in which we put it.  Our submission is that Division 5 does not in terms apply if a section 20C discretion is exercised.  If your Honours would bear with me, this short point.  There is a sharp difference that your Honours will have observed in the positions of the parties to the present application to the meaning and operation of section 20C.  When that is considered in light of the haphazard approach to and consideration of section 20C in the few authorities that seem to have considered it, that in our submission is a powerful reason why a grant of special leave in relation to the section 20C point at least is appropriate.  If it please, those are our submissions.

NETTLE J:   Thank you, Mr Neil.

The Court is not persuaded that the judgment of the Court of Criminal Appeal is attended by sufficient doubt to warrant the grant of special leave.  The application for special leave is dismissed. 

Thank you, gentlemen.  We will now adjourn.

AT 1.11 PM THE MATTER WAS CONCLUDED