Leach v The Queen

Case [2007] HCA 3

HIGH COURT OF AUSTRALIA

GLEESON CJ
GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

MARTIN LEACH  APPELLANT

AND

THE QUEEN    RESPONDENT

Leach v The Queen
[2007] HCA 3
6 February 2007
D10/2006

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Northern Territory

Representation

I R L Freckelton with R R Goldflam for the appellant (instructed by Legal Aid Commission of the Northern Territory)

T I Pauling QC, Solicitor-General for the Northern Territory with R J Coates for the respondent (instructed by Director of Public Prosecutions (Northern Territory))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Leach v The Queen

Statutes – Acts of Parliament – Sentencing legislation – Interpretation – Mandatory sentence of life imprisonment with no non-parole period passed upon the appellant in 1984 in respect of each of two convictions for murder – The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) ("2003 Act") provided that life sentences for murder were taken to include a 25 year non-parole period – Section 19(1) of the 2003 Act empowered the Supreme Court of the Northern Territory, on the application of the Director of Public Prosecutions, to revoke the statutory non-parole period, and, in accordance with s 19(5), to refuse to fix a non-parole period – Whether the discretion granted to the Supreme Court under s 19(5) of the 2003 Act required the Court to consider "ordinary sentencing principles", including questions of the prisoner's rehabilitation – Meaning of the word "may" in s 19(5) – Whether primary judge must be satisfied "beyond reasonable doubt" of the basis for the decision before making an order under s 19(5).

Words and phrases – "may".

Criminal Code (NT).
Criminal Law Consolidation Act (NT), s 5.
Parole of Prisoners Act (NT), s 4.
Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), ss 17-21.
Sentencing Act (NT), s 53A.

  1. GLEESON CJ.   This appeal is from a decision of the Court of Criminal Appeal of the Northern Territory[1] which, by majority (Mildren and Riley JJ, Southwood J dissenting), dismissed an appeal from the Chief Justice of the Supreme Court of the Northern Territory[2] in a matter of sentencing.  The proceedings before Martin CJ concerned provisions of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) ("the Act") relating to persons who were serving life sentences at the time of the commencement of the Act. The appellant was serving three life sentences; two for murder, and one for rape.

    [2]R v Leach (2004) 145 NTR 1; 14 NTLR 44; 185 FLR 189.

    The appellant's custodial history

  2. The sentences of direct relevance were for two murders committed on 20 June 1983. 

  3. In May 1979, the appellant, then aged about 20, was living in Darwin.  He broke and entered a dwelling house and raped a female resident after threatening her with a knife.  He was…

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Leach v The Queen [2007] HCA 3
Case
[2007] HCA 3
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by a prisoner, Leach, against a decision of the Supreme Court of the Northern Territory. The prisoner had been convicted of two counts of murder in 1984 and sentenced to mandatory life imprisonment without a non-parole period. The appeal arose from an application made by the Director of Public Prosecutions under the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (the "2003 Act"), which sought to revoke the statutory non-parole period and refuse to fix any non-parole period for the appellant.

The central legal issues before the High Court were whether the discretion granted to the Supreme Court under section 19(5) of the 2003 Act required the court to consider "ordinary sentencing principles," including the prisoner's rehabilitation, and the meaning of the word "may" in that section. The court also considered whether the primary judge needed to be satisfied "beyond reasonable doubt" of the basis for making an order under section 19(5).

The High Court held that section 19(5) of the 2003 Act did not require a separate consideration of ordinary sentencing principles or rehabilitation after the court had already determined that the prisoner's culpability was so extreme that the community interest in retribution, punishment, protection, and deterrence could only be met by imprisonment for life. The court reasoned that the word "may" in section 19(5) conferred a power, not a discretion, which was to be exercised upon the court being satisfied of the conditions described in the provision. The court also clarified that while findings of disputed facts adverse to the prisoner were to be made to the criminal standard of proof, the evaluation of community interests for the purposes of section 19(5) was not subject to that standard.

The appeal was dismissed.

Orders

Orders of the court

The appeal should be dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ (dissent) GUMMOW, HAYNE, HEYDON AND CRENNAN JJ (dissent)
The satisfaction described by s 19(5) involves an exercise of judgment, based upon a finding of relevant facts, and an evaluation of relevant discretionary considerations as outlined above. What is involved in that judgment is aptly described in the paragraph from the reasons of Martin CJ quoted above. Findings of disputed facts adverse to the prisoner are to be made to the criminal standard of proof[4]. This was accepted by Martin CJ. He applied the criminal standard, for example, to his decision about the dangerousness of the appellant. Correctly, he rejected an argument that all aspects of the satisfaction described in s 19(5) had to be entertained beyond reasonable doubt. The discretionary judgment involved in the application of sub-ss (1), (4) and (5) of s 19 may rest upon findings of fact which are amenable to the application of differing standards of proof, but the evaluation of the demands of community interest referred to in sub-s (5), for the purposes of such a judgment, is not.[4]R v Olbrich (1999) 199 CLR 270.Conclusion The appeal should be dismissed. In the 1980s, the only sentence that could be passed upon a person convicted in the Northern Territory of the offence of murder was imprisonment for life. At the time of the appellant's offending in 1983, the Criminal Law Consolidation Act (NT) provided[5] that the mandatory sentence for murder was life imprisonment with hard labour. Both that Act and the Criminal Code (NT), which came into force on 1 January 1984, provided that the sentence for murder could not be mitigated or varied. If a sentence of life imprisonment was imposed, the Parole of Prisoners Act (NT)[6] precluded the fixing of a non‑parole period.[5]s 5.[6]s 4(3)(b). The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) ("the 2003 Act") changed this sentencing regime. By the 2003 Act the Sentencing Act (NT) ("the NT Sentencing Act") was amended to provide, by s 53A, that when sentencing a prisoner to life imprisonment for murder, a court must, except in certain circumstances, fix a non‑parole period. If a non‑parole period was fixed it had to be not less than 20 years or, if certain aggravating circumstances applied, not less than 25 years. Section 53A(5) provided that a court might refuse to fix any non‑parole period "if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole". Transitional provisions were made, in Div 1 of Pt 5 (ss 17-21) of the 2003 Act, in respect of prisoners, like the appellant, who were then serving sentences of life imprisonment for murder. Section 18 provided that, subject to the other provisions of the Division, the sentence of a prisoner, who at the commencement of the 2003 Act was serving a sentence of life imprisonment for murder, "is taken to include a non‑parole period of 20 years" or, if the prisoner was serving sentences for two or more convictions for murder, "each of the prisoner's sentences is taken to include a non‑parole period of 25 years".

Ratio Decidendi

Legal Principle Established

Established by:

The relevant aspects of the provisions made by the 2003 Act may be described as follows. First, if no application was made by the Director of Public Prosecutions, the sentence of a person, who at the commencement of the 2003 Act was serving a sentence of imprisonment for life for murder, was taken to include a non‑parole period of either 20 years or 25 years[10]. Secondly, if the Director of Public Prosecutions made an application under s 19, there could be one of three outcomes: the Court could revoke the non‑parole period fixed by s 18 and fix a longer period[11]; the Court could revoke the non‑parole period fixed by s 18 and refuse to fix any non‑parole period[12]; or the Court could dismiss the Director's application[13]. Dismissing the Director's application would leave the statutorily determined non‑parole period (in this case the period of 25 years) unaffected. The statutory non‑parole period could be revoked, and a longer non‑parole period fixed, only if the conditions described in s 19(4) were met. The Court could revoke the statutory non‑parole period and refuse to fix a non‑parole period, with the consequence that the prisoner would be imprisoned for life, only if the conditions described in s 19(5) were met.[10]s 18.[11]s 19(1)(a)(i).[12]s 19(1)(a)(ii).[13]s 19(1)(b).Two stages of consideration? The appellant submitted that although the primary judge concluded that the level of culpability in the appellant's commission of the two murders was "so extreme the community interest in retribution, punishment, protection and deterrence" could only be met by the appellant being imprisoned for life without the possibility of release on parole, a discretion was conferred by s 19(5) of the 2003 Act which required the Court to consider separately, and give effect to, what were described as "ordinary sentencing considerations". In particular, the appellant submitted that this second and separate inquiry required consideration of questions about the prisoner's rehabilitation. At once it can be seen that the appellant's submission would require reading s 19(5) as presenting a conundrum for the Court considering an application under s 19. Central to the appellant's contention was the proposition that the Court may be satisfied that "the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole", yet conclude that a non‑parole period should be fixed. That proposition should be rejected. Section 19(5) is not to be read as requiring the Court to consider the exercise of some separate or additional discretion after, or despite, its having reached the conclusion that the level of the prisoner's culpability was as described in the provisions: "so extreme" that the community interest in the specified considerations could "only be met" by imprisonment for life. It is true that s 19(5) says that the Court "may refuse to fix a non‑parole period" if satisfied of the matters set out in the provision. But it by no means follows that, if the Court is satisfied of those matters, it then has to exercise a discretion. Rather, s 19(5) is a provision of the kind considered in Finance Facilities Pty Ltd v Federal Commissioner of Taxation[14] and Mitchell v The Queen[15]. The word "may" is used, not to give a discretion, but to confer a power which is to be exercised upon the Court being satisfied of the matters described in the provision. As Windeyer J said in Finance Facilities[16]:"This does not depend on the abstract meaning of the word 'may' but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised – so that in those events the 'may' becomes a 'must'. Illustrative cases go back to 16[93]: R v Barlow[17]. Today it is enough to cite Julius v Bishop of Oxford[18]; and add in this Court Ward v Williams[19]. But I select one other reference out of a multitude: Macdougall v Paterson[20]. There Jervis CJ said in the course of the argument[21] 'The word "may" is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise'. And, giving judgment, he said[22]:'We are of opinion that the word "may" is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.'"[14](1971) 127 CLR 106.[15](1996) 184 CLR 333.[16](1971) 127 CLR 106 at 134‑135.[17](1693) Carth 293 [90 ER 773]; 2 Salk 609 [91 ER 516].[18](1880) 5 App Cas 214.[19](1955) 92 CLR 496 at 505‑506.[20](1851) 11 CB 755 [138 ER 672].[21]Macdougall v Paterson (1851) 11 CB 755 at 766 [138 ER 672 at 677].[22]Macdougall v Paterson (1851) 11 CB 755 at 773 [138 ER 672 at 679].