Jack v The Queen

[1999] HCATrans 85

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D12 of 1998

B e t w e e n -

BRIGITTE HENRIETTA MARIE JACK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 APRIL 1999, AT 12.11 PM

Copyright in the High Court of Australia

MR S.J. ODGERS:   May it please the Court, I appear for the applicant, with my learned friends, MS S.J. COX and MR J.R. CLARKE.   (instructed by the Northern Territory Legal Aid Commission)

MR R.S.L. WILD, QC:   May it please the Court, I appear with my learned friend, MR W.J. KARCZEWSKI, for the respondent.  (instructed by the Director of Public Prosecutions (Northern Territory))

MR ODGERS:   Your Honours, the question raised by this application is whether the dicta of the New South Wales Court of Criminal Appeal in Maclay raising the possibility, at least, that principles of parity might require a sentencing court to take into account the abolition of remissions where a co‑offender has been sentenced under the pre-existing remissions regime, whether - - -

GLEESON CJ:   We do not have page numbers on the copy of Maclay we have but this is the one appears - - -

MR ODGERS:   Page 127.

GLEESON CJ:   The paragraph beginning with the words “There may be particular cases”?

MR ODGERS:   Yes, that is it.  The question is whether that dicta should harden into law, notwithstanding the decision of this Court in Siganto.  We submit that Siganto does not resolve the issue against us.  The majority held in that case that there was no relevant inequality of treatment before the law between offenders sentenced before and after the abolition of remissions since the Sentencing Act in that jurisdiction was intended to apply to offenders being sentenced for offences committed before the commencement of the Act.  The Act itself contemplated the very differential treatment and could have enacted transitional provisions to cover that issue and did not do so.

However, that general analysis, we say, does not necessarily apply to the type of case raised by this application.  The absence of a transitional provision dealing with parity issues does not require a conclusion that such an omission was deliberate, given that it is a well-established principle of sentencing which could, without difficulty, fall within the general provision in section 5(2):  must take into account “any other relevant consideration”.  Given the fundamental nature of the principle of parity, it is not an inevitable conclusion from the absence of a specific transitional provision or the reference in section 58 to sentences “less than 12 months” that the legislature in the Northern Territory intended to prevent the abolition of remissions being taken into account in a case such as this.

It is the fundamental and well-established nature of the principle which supports an interpretation of the legislation permitting it to be taken into account.  If it is taken into account, it is necessary to compare the actual punishment the prisoners will undergo.  Here, the actual sentences, the actual punishment on the applicant, was a head sentence of 84 months, compared with 32 months for her co-offender, and a non-parole period of 60 months, compared with 18 for the co-offender.  In our submission, the applicant has a justifiable sense of grievance when she compares her sentence with that of her ex-husband.  Because the sentencing judge and the Court of Criminal Appeal considered that there was no provision in the Sentencing Act which would permit a reduction of her sentence to take into account the realities of her ex-husband’s sentence, the court, no doubt, classed the grievance, presumably, as unjustifiable.

In the words of Siganto, the majority, the difference was no doubt regarded as a result of a change in the law.  But section 5(2) provides a mechanism for applying parity principles in this context.  It cannot be said that by not referring to such a well-established principle, that the Northern Territory legislature intended that it would not operate in this context.  In our submission, special leave should be granted for the reasons that we have articulated at application book, page 44.  I really do not know that I can add anything more than to what I have said there.

We recognise that this is not an issue which is going to affect a lot of people but, nonetheless, it raises an important question of principle and has very significant implications for the applicant.  We say the interests of the administration of justice warrant the grant of special leave in this particular case in accordance with the Judiciary Act.  Those are my submissions.

GLEESON CJ:   Thank you.  Yes, Mr Wild?

MR WILD:   If your Honours please, my learned friend says that this will not affect many people.  We are not sure of any that it will affect, quite frankly, in the Northern Territory at this stage.

Your Honours considered very similar submissions in the matter of Siganto (1998) 73 ALJR 162, which my learned friend has noted. The majority in that case included your Honours and Justices Gummow and Hayne, with Justice Gaudron in the minority. In paragraph [17] at page 165, your Honours said this – and it follows the argument which was put in relation to the transitional provisions. Perhaps it is better to go back to [16]:

The argument was that, in the particular circumstances of the present case, which included the fact that some of the delay in bringing the appellant to trial occurred as a result of the conduct of the complainant, and was not the fault of the appellant, fairness and “equal justice” required that the appellant should not be punished more severely than he would have been had he been sentenced before the commencement of the Act.  Thus, on the individual facts of this particular case, the consideration that the appellant was being punished for an offence committed before the operation of the Act was a "“relevant circumstance".

“Relevant circumstance” under section 5(2), as my learned friend has just referred to.  The same argument was put.

[17]     This argument should be rejected.  The Act was intended to apply to offenders being sentenced for offences committed before the commencement of the Act.  Giving effect to that intention produces the result that people who had previously offended but had not yet been sentenced would be treated differently from people who had previously offended and had been sentenced.  This is not relevantly inequality before the law.  It is a consequence of a change in the law. 

And then the circumstances go on, “vary greatly”.

Now, your Honours, in this particular case, it is true that this woman received a sentence which included a component which may have been different had she been sentenced earlier.  Siganto says that is not to the point.  In dealing with the parity argument, there was obviously sufficient before the court to justify a different sentence and that is very closely analysed in the course of their Honours’ reasons.  Disparity – we use that term loosely – was justified.  So, there was no, objectively, unjust disparity between the parties.  The disparity, as such, was caused by two factors:  one, the difference in the culpability of the two offenders and, secondly, the change in the legislation.  There is no point of general issue, in our submissions.

GLEESON CJ:   Yes, thank you, Mr Wild.Yes, Mr Odgers.

MR ODGERS:   Nothing in reply.

GLEESON CJ:   The Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Criminal Appeal and on that ground leave should be refused.

AT 12.20 PM THE MATTER WAS CONCLUDED