PNJ v The Queen

[2008] HCATrans 370

[2008] HCATrans 370

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A8 of 2008  

B e t w e e n -

PNJ

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 12 NOVEMBER 2008, AT 10.22 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC:   May it please the Court, I appear with my learned friend, MR H.M. HEUZENROEDER, for the applicant.  (instructed by George Mancini & Co)

MR M.G. HINTON, QC (Solicitor-General for South Australia):   If the Court pleases, I appear with my learned friend, MS H.H.L. DUONG, for the respondent.  (instructed by Director of Public Prosecutions (SA))

FRENCH CJ:   Yes, Mr Wells.

MR WELLS:   May it please the Court.  Could I invite your Honours to have near at hand the decision of this Court in Pearce, because that is where I will first be going.  It is in the bundle of cases that has been provided to the Court.  Your Honours, there are two routes leading, we submit, to the conclusion that the prosecution of this information should be stayed as an abuse of process.  One route assumes a power to backdate the commencement of the non‑parole period in this case.  The other route denies a power to backdate the commencement of the non‑parole period.  Your Honours, in brief, the two routes may be pursued in this way and I shall proceed by pursuing the first of the two routes mentioned, that is assuming a power to backdate the submission that we put upon that assumption if there is a power to backdate under section 30(1) or under section 30(2). 

The submission that we put is that in any event even a full backdating of the commencement of the non‑parole period, even if it goes back earlier than the date on which the victim died – that is, goes back to the date on which the applicant first was taken into custody on 26 September 2002 – does not sufficiently alleviate double punishment.  The result will be that upon a plea of non guilty there will be initiated an irremediable miscarriage of justice which identifies its proceeding at this stage as an abuse of process.  We put the further submission, however, that there can be on no view a backdating of the non‑parole period any earlier than the date upon which the victim died, which was 28 June 2004.

The alternative route works through these steps.  Under section 30(2) there can be no backdating undertaken in relation to this sentence and this non‑parole period, that there is no discretion, that is, at large or general, under section 30(1) of the Sentencing Act to backdate either the sentence or the non‑parole period and that in that respect and to that extent the judgment of the Court of Criminal Appeal in Colson is wrong.  Alternatively, the submission that we put is that backdating of the minimum mandatory non‑parole period for murder is necessarily prohibited by the scheme brought into existence by the amending Act of 2007, that is, section 32(5)(ab) which imposes the minimum mandatory non‑parole period for the offence of murder of 20 years and section 32A which then control the extent to which, if at all, that minimum non‑parole period can be alleviated. 

The result of those submissions is that in the circumstances of this case and given therefore the clear prospect of double punishment should there be a trial and a conviction.

FRENCH CJ:   You used the term “alleviate”.  By that you mean fixing a non‑parole period shorter than the prescribed period?

MR WELLS:   Yes, your Honour.

FRENCH CJ:   There is a distinction being drawn between that and the concept of backdating, is there?

MR WELLS:   Yes.  Our submission will identify the way in which the distinction cannot be maintained.

HAYNE J:   Now, central to both branches of the argument is the assertion that there will be double punishment, can you identify what is the overlap in punishment of which you complain?

MR WELLS:   Yes, your Honour.  The applicant, as a result of the events that occurred on 24 September 2002 was charged with two offences, attempted murder and wounding with intent to cause grievous bodily harm and was convicted ‑ ‑ ‑

HAYNE J:   I understand the background, I understand that he was sentenced for the assault, but where lies the overlap?  What is the doubling up of punishment to which you point?

MR WELLS:   Your Honour, we identify, therefore, following the principles enunciated in Pearce, the elements of each offence.  The elements for wounding with intent to cause grievous bodily harm are identified in that description and it is in respect of those elements that the applicant received a sentence of imprisonment of seven years with four years non‑parole.  The elements of murder include those elements.  Once upon a time we would have wanted to argue, and I think it is now not open to us to argue, that in fact the elements of murder entirely encompass the elements of wounding with intent to cause grievous bodily harm.

FRENCH CJ:   The concept of wounding is not necessarily an element of murder, is it?

MR WELLS:   No.

FRENCH CJ:   There are various ways of killing people, apart from breaking their skin.

MR WELLS:   Yes.  Well, the other example would be poisoning, where there would not be an assault involved, and we acknowledge that, but this is perhaps an argument which ‑ ‑ ‑

FRENCH CJ:   Or even choking someone to death, I suppose.

MR WELLS:   Yes, your Honour, although that would still be an assault.

FRENCH CJ:   Yes, but assault is not an element of wounding with intent, is it?

MR WELLS:   No, it is penetration of the skin, but ordinarily penetration of the skin is the result of an assault.

FRENCH CJ:   Well, that may be so.

MR WELLS:   We accept that, your Honours, but for our purposes we do not have to stay with the argument of whether for the purposes of a plea in bar that murder entirely encompasses wounding with intent to cause grievous bodily harm, we have to accept that we are past that point now, but all the same there are clearly common elements.  For the purposes of punishment ‑ ‑ ‑

FRENCH CJ:   Sorry, can you just specify again, what are the common elements in terms of the definition of the offences as distinct from the accident of this particular case?

MR WELLS:   As with all criminal offences, there is the act and then there is the state of mind.  There is clearly here a common element in the state of mind.  The reason for that is that the applicant has been acquitted of the charge of attempted murder.  It is not now possible, even if there were any retrial, for the Crown to put a case that relied upon an intention to kill.

FRENCH CJ:   So the first common element is intent to cause grievous bodily harm?

MR WELLS:   Yes, that is right.  The second common element, which in our respectful submission does come into play for the purpose of sentencing is the actus reus.  In terms of, if you like, the generic elements, it is not necessarily the case that they have to be common and that is accepted.  The ordinary formulation of murder would be simply an unlawful killing with the requisite state of mind, and for wounding it would ordinarily be an act which involves a breaking of the skin.

HAYNE J:   But both branches of your argument focus upon the minimum term and the way in which – or the non‑parole period, is that right?

MR WELLS:   That is right.

HAYNE J:   It is said that there is double punishment because of the way the Act, as it now stands, obliges the Court to deal with non‑parole periods, is that right?

MR WELLS:   Yes.

HAYNE J:   What I do not understand is what it is about fixing a minimum term, fixing a non‑parole period, that engages the notion of double punishment.  I understand your answer thus far to look at elements of the offence and say, “Well, there are common elements, therefore”, but the argument you begin with begins from the minimum term and what I do not understand is where in the minimum term notion and the way it is engaged in these cases there is an element of double punishment.  Can I just take the point a further stage so that you know where the argument is going?

MR WELLS:   Certainly.

HAYNE J:   The sentence to be imposed for murder is not sufficiently identified by describing the minimum term provisions.

MR WELLS:   No, we agree with that.

HAYNE J:   The sentence for murder must take account of the fact that there is a mandatory life term, must it not?

MR WELLS:   We agree with that.

HAYNE J:   Now, you fasten on one element of punishment.  You say, “therefore double punishment”, you identify common elements, but I do not yet follow the train of reasoning more precisely than that, and what am I missing?

MR WELLS:   Can I make two points, your Honour?  The first might be a bit by the way but it is worthwhile clearing it.  We do not concentrate our argument simply and solely on non‑parole period.  We accept that there is a mandatory head sentence of life imprisonment.  Our submission is that in fact a life sentence can never be backdated.  A life sentence is for the rest of one’s life, and there is, therefore, an initial incongruity anyway in the notion of backdating a non‑parole period for a sentence which can only operate prospectively.  But putting that aside for the moment, because that perhaps arises at a later stage, the operation of the Criminal Law Consolidation Act ‑ ‑ ‑

GUMMOW J:   Is it section 11?

MR WELLS:   Section 11, your Honour.

GUMMOW J:   What does that say?  I am not sure we have the text.

MR WELLS:   I beg your pardon.  Your Honours, I think it is in footnote 8 of our outline, your Honour, but I think ‑ ‑ ‑

GUMMOW J:   Thank you, footnote 8?

MR WELLS:   Footnote 7 I am told.

“Any person who commits murder shall be guilty of an offence and shall be imprisoned for life.”

GUMMOW J:   So it is common law, pure common law.

MR WELLS:   Yes it is.  Except in the case of felony murder which has attracted a particular statutory provision.  I will come back to that.  That is section 11.  Then there is the Criminal Law (Sentencing) Act, which I will refer to as the Sentencing Act, which in section 32(5)(ab) prescribes the mandatory minimum non‑parole period.  Then one must then turn to the Correctional Services Act 1981 which deals with non‑parole periods and ‑ ‑ ‑

GUMMOW J:   It is in the book?

MR WELLS:   In our own written submissions, your Honours, which is in a booklet form we have behind tab 4 included provisions of the Correctional Services Act and in particular ‑ ‑ ‑

FRENCH CJ:   This goes up as a recommendation to the governor once the minimum period has elapsed does it?

MR WELLS:   Yes, your Honour.

FRENCH CJ:   It effectively means to the Minister, does it not?

MR WELLS:   Yes, Cabinet, as our experience in this State suggests.  It becomes a consideration of Cabinet and then a recommendation from Executive Council.  But your Honours will see in section 67, which deals with the release on parole by application to the board, there is a special provision for a prisoner who is serving a sentence of life imprisonment and that is section 67(6) and, as your Honour the Chief Justice has said, it results in a recommendation to the Governor, that is, if there is to be parole – perhaps I should say that Correctional Services Act itself defines “non‑parole period” as meaning “a period during which a prisoner may not be released on parole” – and the recommendation to the Governor where there is a recommendation for release is for release on parole for

a period of not less than 3 years or more than 10 years for which the prisoner should continue on parole

That is subsection (6)(a)(ii).  It is for the Governor to determine on advice whether the recommendation should be accepted.  If it is, then there is a further provision that deals with the consequences of release on parole of a person serving a term of life imprisonment and that is section 70 of the same Act which provides relevantly for our purposes that

(1)A prisoner serving a sentence of life imprisonment who is released on parole will, unless the release is cancelled or suspended, or the sentence is extinguished, remain on parole . . . 

(b)in any other case – for the period recommended by the Board and approved by the Governor ‑

(2)On the expiry of the parole of a person pursuant to subsection (1), the sentence of imprisonment will, subject to this Part, be taken to have been wholly satisfied.

FRENCH CJ:   So they do not have to stay on parole for the rest of their life?

MR WELLS:   That is correct, because the parole period is a maximum of 10 years.  So by this process, the prospective life term, mandatory though it may be, from the point of view of the prisoner, can become something less than life and the period of non‑parole therefore becomes somewhat important because at the expiry of the non‑parole period, whenever it would be, there is the opportunity to apply for parole in the terms of section 67 and section 70 and the result ‑ ‑ ‑

FRENCH CJ:   So the 10 year maximum on parole applies to life prisoners as well as others, does it?  There is not a separate head of power to fix a time under 70(1)(b)?

MR WELLS:   For 10 years, no, your Honour.  It is section 67(6) which governs that and in paragraph (a), if the board so recommends – that is, recommends parole, “the board must recommend” ‑ ‑ ‑

FRENCH CJ:   I am sorry, yes, that covers specifically the life term.

MR WELLS:   Yes.  That is a special provision for someone serving a term of life imprisonment.  Now, I am not sure whether I am directly engaging with your Honour Justice Hayne’s question in that respect, but the answer that we proffer to it is that our case does accept and acknowledge the head sentence and its operation but it founds on the significance of the non‑parole period and, therefore, the intention of the legislature in setting a minimum mandatory non‑parole period as requiring a definite period of imprisonment before there can there be any question of applying for parole.  So particularly when one then goes back to section 30, which deals with the linkage between the head sentence and the non‑parole period, it is ordinarily the case that the non‑parole period will be taken to commence upon the commencement of the head sentence.  That is, there is no separation between the commencement of the head sentence and the commencement of the non‑parole period, which I think takes me back, your Honours, to identifying again the question that has first been raised with me, and that is, what are the common elements.

CRENNAN J:   Well, the related question, what is the double punishment?  Identify that?

MR WELLS:   Yes.  So the double punishment comes about because what the applicant in this case has already served – we are not looking ahead in that respect and that is what makes this case somewhat unusual.  As I stand here today, the applicant has served in prison just over six of the seven years that he was sentenced to, has not been released on parole, and the parole board has in fact adjourned consideration of his parole application until the murder charge has been dealt with.  So he has served seven years for the conduct which is identified in the wounding with intent and then he stands to be sentenced to life imprisonment prospectively with a minimum non‑parole period, unless it comes within the exceptions, of 20 years for the ‑ ‑ ‑

HAYNE J:   If the sentencing court chooses to fix a non‑parole period.

MR WELLS:   Yes, that is accepted, your Honour, but in this case our respectful submission is that there is no question but that a non‑parole period would be fixed in this case.  I think it is accepted on all hands that if the mandatory non‑parole period were not here, a non‑parole period of less than 20 years would be fixed.

HAYNE J:   Well, that invites attention to what the purpose of a non‑parole period is.  Do you accept that a non‑parole period is to be fixed in accordance with the principles discussed in Bugmy 169 CLR 525, particularly at 538, as being the period before the expiration of which release of the offender would, it is there said in the estimation of the sentencing judge, be in violation of justice according to law. And here there is a legislative judgment made, is there not, that 20 years in any case of murder, absent the very special circumstances, and a limited range of special circumstances statutorily identified, 20 years is that minimum term, is it not?

MR WELLS:   Your Honour, one cannot quibble with any part of what your Honour has put so far as it goes, with respect, but the additional factor here is that the applicant has already served six and probably will serve seven years of a sentence which has been passed upon him for the same conduct, exactly the same conduct.  The only difference between the conduct for which he was sentenced by Justice Mulligan in August 2003 and the conduct which amounts to murder is the course of events which are alleged to have proceeded from that conduct, namely, that the conduct ultimately caused the death of the victim.  Now, I say “only”.  I do not by that diminish the seriousness of that consequence.  What I mean to say, though, is that that has been set on its course already by the conduct which was completed so far as the applicant was concerned in that incident on 24 September, an incident which constituted the circumstances for which he was sentenced for wounding with intent and will also constitute the circumstances in which he would be dealt with on the charge of murder.

So the result, we respectfully submit, is picking up on the principles to be derived from Pearce that what the applicant now stands to be punished for is the same act, the same conduct.  Of course there is the additional and serious feature element of cause of death which is still, of course, at large as a matter alleged, but that apart there is a complete identity in the conduct, and our respectful submission is that it cannot but be concluded that if he were now to be sentenced he would be sentenced having regard to that conduct.  Now, a lot of it as it were has been hammered in place by the statute.

CRENNAN J:   Do you accept that if it is possible to backdate the non‑parole period to the date when the accused was first taken into custody the whole problem of double punishment goes away?

MR WELLS:   We do not, your Honour, we do not.  Our respectful submission is that the effect of backdating is the same effect as concurrency and Pearce’s Case stands for the proposition, we submit, that concurrency in a sentence does not sufficiently alleviate double punishment.

KIEFEL J:   Does it really say that or is Pearce really about a method by which sentencing should be undertaken?  It had the unusual position there that it was exactly the same conduct for the two offences.

MR WELLS:   No, our respectful submission is that Pearce stands for a more profound proposition than that, your Honour.

KIEFEL J:   Does it stand for more than that a trial judge is required to determine the appropriate sentence for each offence and then proceed to consider concurrency, accumulation and totality?  That is the method that it was concerned with?

MR WELLS:   We submit not.  We submit that there is a further matter in what your Honour has elicited.  It would proceed in this way and this is what we say Pearce stands for, that a person is to be sentenced so that the punishment for each offence of which he or she is convicted is a punishment that fits the crime.  That is the first consideration and I am approaching it in this way simply for analytical reasons, your Honour.  I am not suggesting that this is a staged approach, it is simply a method of analysis.  The punishment for each offence must fit the crime.  To that extent the sentencing judge addresses each offence and fixes the appropriate punishment, and I will not stay to deal with that in terms of head sentence and non‑parole period, we will just say the appropriate punishment.

It is then necessary to ensure, having done that, if there are common elements in the two offences that an adjustment is made to one or either or both of the proposed sentences to ensure that there is not double punishment.  It is then a question of considering, whether having regard to the nature of the criminal transaction or transactions, it is appropriate that the sentences be served concurrently or cumulatively.  That is all subject to, as it were, an overriding telescopic view of what has been done to give effect to the totality principle.

FRENCH CJ:   Where, of course, you have a mandatory sentence of life imprisonment and where you have a mandatory minimum period for parole the area of choice for the charge in determining the appropriate head sentence and combination in respect of the murder does not exist, subject to either not fixing a parole period or fixing a longer parole minimum, I suppose.  So there is a degree of artificiality about just bringing in the general principle in Pearce into this circumstance, is there not, where a judge is subject to a direction as to what has to be imposed?

MR WELLS:   Your Honour, I would want to make clear one thing and that is we are not addressing in this case and in this submission the operation simply of, if you like, mandatory sentences.  What we are addressing here is in the circumstances the consequences of mandatory sentences and a mandatory non‑parole period in circumstances where there has already been a sentence of imprisonment served.  So we are identifying as a particular circumstance here clearly, if you like, the double punishment aspect.

Coming back to what your Honour puts, what we say is that in these circumstances the circumstances and the application of the legislation means that the adjustment that Pearce required cannot be made and it cannot be, as it were, compensated for by simply trying to embrace a form of concurrency because double punishment – and this is again one of the lasting lessons from Pearce – is not alleviated or, I should say, not sufficiently alleviated by concurrency.

FRENCH CJ:   Why is not the answer to that simply this, that the statute only leaves you with the possibility of backdating and if that leaves a principle of double punishment in place, that is a consequence of the statute?

MR WELLS:   Your Honour, a choice has to be made, in our respectful submission.

FRENCH CJ:   You are saying it is an abuse of process issue?

MR WELLS:   Yes, that is what we are saying, that it is not sufficient.  Can I take an example.  I think the decision in New South Wales was GJE.  I cannot give your Honours a reference.  I think it is unreported but I will undertake to do so.  It went to this Court on special leave and special leave was refused.  It involved this, that there is a provision in New South Wales which limits the extent to which counsel in a sexual case can cross‑examine the complainant.  The trial judge took the view that that so far deprived the accused of the right to confront witnesses and therefore so far deprived the accused of a right to a fair trial that it would be an abuse of process to allow it to proceed and the trial judge ordered a stay.  That was overturned by the Court of Appeal and, as I say, special leave to appeal was refused. 

That is what we would call a case of – without meaning disrespect to the Parliament – institutional abuse of process.  It was required by the legislation.  It was not a matter of identifying in the particular circumstances events which could be identified as a situational abuse.  It was brought about by the command of the Parliament and the court ‑ ‑ ‑

KIEFEL J:   But is there not a difficulty in the notion of an abuse of process in an effect of sentencing?  I had understood that is why you had curved your argument around to deal with that, to place the notion of something going wrong in the process to be undertaken to focus upon the position of the accused in pleading.  So, it is not a sentencing effect that you have to look to make out your abuse of process.  It is purely the effect upon the accused, is it not?

MR WELLS:   Your Honour, it depends on which route we are travelling.  Your Honour will recall that I have put up two routes which both ‑ ‑ ‑

KIEFEL J:   But you cannot have them running in a parallel which is what you are doing, I think.

MR WELLS:   No, with respect.  The route that I am on at the moment is the route that says – and it has, as it were, got less steps to it.  This is a case where the circumstances, namely, the earlier sentencing, have resulted in an application, because the DPP has proceeded with the charge, of the legislation which identifies in the director’s decision to proceed an abuse of process.  The abuse of process in this route is an abuse of process which actually does not focus primarily upon the accused because, as was said in the joint judgment in Pearce, the question how long is not the sole question for double punishment.  The question that the prisoner asks how long is not the sole question. 

There is another question which we identify, as it were, as the public aspects of sentencing which are concerned with such principles and considerations as vindicating by the sentence that is imposed the values of a community which the community has asked the court to uphold, the denouncing, which is the word that we choose to use, on the part of the community of the conduct of a particular accused, not only as having an effect on the accused but also as having an effect for the community, signifying the community’s disapproval, as it were.

So questions of denunciation, questions of vindication of values are as much a part of the sentencing process as the impact on the life of the person being sentenced.  When one considers the route that I am presently travelling down, what we concentrate upon is not just the how long, but the importance from the point of view of community values of the court being able to say this is the appropriate sentence for this conduct because it is sending these messages and making these declarations both of vindication of values and of denunciation. 

If one identifies therefore in the process of sentencing what we call the public aspects as well as the personal aspects – those personal to the accused – then, in our respectful submission, the line that we are presently travelling along must, we submit, because of the sentence already served and because of the director’s insistence on prosecuting this charge, result in an inevitable miscarriage of justice should this matter go to trial.

A formal plea of not guilty would initiate, on this view of the matter, an inevitable miscarriage of justice because, short of an acquittal, if there were to be a conviction, the sentencing judge would have no relevant discretion.  The sentencing judge, even if the sentencing judge had a power to backdate, would not be able to alleviate the double punishment which would result from condemning this applicant to imprisonment for the same conduct for which he has already been imprisoned, as I say, for almost seven years.

HAYNE J:   Do you seek to have us qualify in any respect what is said in Pearce at paragraph 40 of the reasons in Pearce 194 CLR 610, particularly 623?

CRENNAN J:   I would be particularly interested in your answer in relation to the second sentence.

MR WELLS:   Would your Honours pardon me for a moment.  Your Honours, we do not resile, or at least invite the Court to modify anything in that paragraph.

HAYNE J:   But the second sentence is the knife in the napkin, is not it, Mr Wells?  It really is.  It has to yield to contrary legislative intention.

MR WELLS:   We do not submit, your Honour, that there is any contrary legislative intention here.  There is not the slightest indication, your Honours, that the legislative scheme in this case even had in contemplation the circumstances that have presented themselves in this case.

HAYNE J:   It has not been uncommon in Australia, has it, particularly since the abolition of the year and a day rule, to have people convicted of an assault and later prosecuted for the murder of the victim?

MR WELLS:   Your Honour, I do not think we could exceed to the proposition that it is not uncommon.

HAYNE J:   My impression may be quite wrong then.

MR WELLS:   It would be unusual and, indeed, I stand to be corrected, but my learned friend might be in a better position to say, but I am not aware of any case in South Australia since the abolition of the year and a day rule in the early nineties, 1991, where the circumstances that we are confronted with here have occurred, given a non‑parole period or not, one of the critical features being here that the applicant has substantially served the sentence for all of the same conduct short of a death.  As I am reminded, it was not a small sentence, it was a substantial sentence and he stands now to be sentenced, in effect, as if he had not served any term at all for the conduct which resulted in death.

KIEFEL J:   Forgive me, but why would not backdating to the time in which he was taken into custody have the desired effect of overcoming double punishment?  Are you really saying that Pearce does not allow any concurrency from this?

MR WELLS:   What I am saying, your Honour, is that concurrency does not sufficiently alleviate the double punishment.  I do not take my submission as far ‑ ‑ ‑

KIEFEL J:   So that leads you back to the minimum term for non‑parole period, is that what you are saying?

MR WELLS:   No, your Honour.  I am not basing on that at all.  If we go back to Pearce itself, which did not involve any mandatory non‑parole periods, the concern was expressed and, indeed, the court acted on this proposition, that although the two sentences that have been passed were to be served concurrently and they were for the same length of time, both offences attracted a sentence of 12 years to be served concurrently, and it was said that that still had the sentencing error in that case, because no term of imprisonment had in fact been served sufficiently, had the error of double punishment even though they were concurrent.

KIEFEL J:   But Pearce, if I understand what you are saying, did not say that concurrency cannot alleviate the double punishment.  I thought what Pearce said was that in that particular case the concurrent terms may have disguised the error which was that consideration was not given to an appropriate term for each offence.  I did not understand Pearce to say any more than that about whether concurrency was possible.

MR WELLS:   Your Honour, with respect, has expressed it in terms of consideration not given to the appropriate term of imprisonment.  Our respectful submission is that in Pearce that was expressed in terms of double punishment, that is, what had been a sentence was inappropriate because it failed to take account of and to make adjustment for common elements for which the accused had been sentenced in relation to both offences.  So one cannot divorce the notion of inappropriate sentence from the particular flaw as it was identified by this Court which was common elements not accounted for and adjusted notwithstanding concurrent sentences.

KIEFEL J:   But the big difference must surely be, I think what the Chief Justice pointed out to you just before, and that is that in this case the head sentence for murder and also the minimum non‑parole period are prescribed by statute so that the sentencing judge does not have any flexibility, if you like, in relation to those two matters.

MR WELLS:   And therefore there should not ‑ ‑ ‑

KIEFEL J:   And perhaps the only option is the shortening of the non‑parole period provided backdating is allowed.  So you have really got a very different set of circumstances from those which prevailed in Pearce’s Case, because of the statutory requirements, as the Chief Justice pointed out.

MR WELLS:   Our respectful submission, your Honour – and this takes me back to the case of GJE – is that we are not here talking about a legislative prescription.  We are talking here about a decision to prosecute in circumstances where the law as a result would produce an oppressive, vexatious and unjust result.  Now, the distinction between this case and GJE lies in this, that in the case of GJE the provision which prohibited cross‑examination of the complainant as to past history applies in all cases.  The effect of the decision of the trial judge, in effect, was to say nobody can prosecute for a sexual offence where what would be involved would be a confrontation of the complainant with respect to past history.

HAYNE J:   If your submissions are right, could there ever be a prosecution for murder after the accused person has been convicted of assaulting the victim?  I think the answer must be there could not, but is that so?

MR WELLS:   Your Honour, I think bar only the exceptions in section 32A which would remove the mandatory non‑parole period.

HAYNE J:   But even there, if a person has been charged with assaulting the victim, convicted and sentenced whether to imprisonment or to some other form of punishment, are not the consequences that you say obtain in this case consequences that would follow in any case if that offender were later to be prosecuted for the murder?  The offender would be subject to the outcomes prescribed by the statute, you would say, punishing him or her twice for the element of the offence which you say is constituted by the assault with murderous intent.

MR WELLS:   Bar a consideration, your Honour, of the extent of the earlier punishment and that is whether as a matter of degree it would be regarded as sufficiently intrusive to attract the double punishment principle, the consequence would be as we have contended.

GUMMOW J:   This double punishment principle is a bit mysterious, really, is it not?  We are not in the realm of pleas in bar.  That has gone, has it not?  We are not yet and may never be, but we are not yet at the stage of “double punishment” as a “sentencing” consideration.  We are in the third area, which is abuse of process founding a stay of prosecution.  What is the content of the motion of abuse of process in that setting beyond pleas in bar?  In other words, why do you bother about pleas in bar?  Why are they not absorbed within notions of abuse of process with an extra difference – an add‑on if you like – between the pleas and the rest of abuse of process?  It is very hard to find a footing on which to start to consider these principle questions, it seems to me.

MR WELLS:   Your Honour’s reasons in Pearce, which I think have been reflected in some other judgments in this Court, identify that double punishment is an aspect of the precept principle or value of double jeopardy.  That precept finds expression in various rules and at various stages of the criminal process, put aside for the moment the civil process.

GUMMOW J:   In South Australia, and we are in the Supreme Court, are we not, this comes out of the inherent powers of the Supreme Court, does it not under this constituent legislation?

MR WELLS:   Yes, it does.

GUMMOW J:   What is the impact upon that notion of abuse of process of a specific statutory regime to which reference has been made this morning – the recent specific statutory regime?  At the end of the day it may be a question of looking at two statutes, actually, informed by these nebulous but significant notions of double punishment.

MR WELLS:   Your Honour when speaking of two statutes, referring to, on the one hand ‑ ‑ ‑

GUMMOW J:   The Supreme Court Act.

MR WELLS: Section 17 of the Supreme Court Act which confers the jurisdiction of the Supreme Court and these sentencing provisions.

GUMMOW J:   Yes.

MR WELLS:   Then determining, effectively, which is to have paramountcy.

GUMMOW J:   Or how they work together?

MR WELLS:   Yes.

GUMMOW J:   You want to work them together in a particular way?

MR WELLS:   We do, your Honour, and we claim this advantage that the particular dilemma that has arisen in this case is not exposed by the amending Act as a dilemma intended to be created.  What is intended to be created is – if your Honours will pardon the phrase – a law and order approach which reduces to an extent, but only to an extent, a sentencing discretion and generally speaking seeks to increase penalties for crime, but that identified and revealed legislative intent cannot be, we submit, identified as intention to secure the double punishment of someone in the applicant’s case.

GUMMOW J:   I am not saying this adversely to you but maybe it comes down to your construing the legislation with a greater weight to common law values, to put it that way, of double punishment – avoidance of double punishment – than the Solicitor‑General would have us.

MR WELLS:   Indeed, your Honour, and what we contend is that that is an accommodation which is available not only because we can identify the legislative intent and state, we submit with some confidence, that this would appear to be an unintended consequence of what those amending provisions provided for.  Not only we can say that, but we can also say, your Honours, that this is not what I have called an inevitable result of the legislation alone.

FRENCH CJ:   Just exploring that question of abuse of process which I think we need to focus on, one has the analogy in the civil jurisdictions of – you have got your res judicata issue, estoppel, Anshun estoppel and this broader concept of abuse of process which might embrace things like litigation brought for some sort of collateral purpose or effectively re‑litigating something which has been litigated somewhere else, even if there is not a res judicata or estoppel generated by it.  Here, your equivalents are the pleas in bar.

We are out of that territory, as Mr Justice Gummow said.  So, accepting that the concept of abuse of process has to allow for the varieties of human perversity, what sort of principle informs your characterisation of the initiation of this prosecution as an abuse of process?  You are not saying it is an improper purpose, you are really talking – so far you seem to be doing it by reference to the necessary consequences of the prosecution in the event that the accused were to be found guilty.

MR WELLS:   Yes, the inevitable consequences.

GUMMOW J:   The inevitable legislative consequences.

MR WELLS:   The inevitable consequences of this case going forward in the legislative framework that has been set up and I express that in order to draw a distinction, your Honour.

CRENNAN J:   Well, you have framed it, I think, have you, but correct me if I am wrong, that the legislation is such that there is an improper pressure on the accused to plead a particular way in order to avoid this inevitable prospect of double punishment?

MR WELLS:   Yes.

CRENNAN J:   That is the precise abuse of process, as I understand it.

MR WELLS:   Your Honour, for me to respond to that carefully I should say this,  that the abuse that we identify is a different abuse depending upon the road that we are travelling.  The abuse that your Honour identifies we certainly are found on, and it is set out in some detail in our written submissions, but that really is the consequence of the other road, that is, the road that says there is no power to backdate.  So that what then this accused, this applicant, is confronted with is a clear prospect of additional time being spent, that is, on top of what he has spent already, with no concurrency between them at all. 

For the applicant that does raise the cry, “how long”, and the answer that is given there is, well, it is this long if you plead not guilty and it will in every probability be much less if you plead guilty.  That is the pressure that we identify as constituting an abuse.  We do not say that the legislature has not had, as it were, a contributing part in that; it must, because that is the legislative framework.  But the abuse is the abuse, in the formal sense, of the director in prosecuting, given that legislative framework and given therefore the improper pressure that will result and will be brought about on the applicant.

Now that, your Honour, is the free choice basis of abuse of process which we are found on if there is no backdating available.  If backdating is available, then we are faced with this, that from the point of view, that is, from the personal aspects of sentencing, of the applicant, the applicant’s cry “how long” becomes muted because of the concurrency that results from backdating.  But, as Pearce says, certainly from the point of view of a proper sentencing principle, the how long is not all there is, and that takes me back to what I have said before about the public aspects of sentencing; vindication and denunciation. 

That is not, probably, not going to have a great impact on a particular applicant.  Some accused people may feel very concerned about the extent to which they are denounced by the community; others will not.  They will all feel concerned about how long they are going to spend inside.  So the nature of the abuse in the road that we are travelling where we assume backdating is a different kind of abuse from the free choice issue that we have contended for.  The nature of the abuse that we identify there, your Honours, is that the court can now see, ahead of time, an inevitable miscarriage of justice provoked by a not guilty plea, in that when the not guilty plea is entered and the trial is embarked upon, save for the question of acquittal, there is no going back. 

The judge cannot do anything about the result of a conviction.  The judge is placed in the position of having then to impose the mandatory life sentence and having then to impose the mandatory minimum non‑parole period of 20 years without any ability to adjust for time already spent, seven years, or more by then, for the same conduct.  So it is the inevitability of the course set which we then identify as the abuse of process. 

If your Honour were to take up for a moment our outline, we give expression to that in paragraph 34.  We give some references in the footnote, footnote 39, to cases which are I think with one exception or perhaps two exceptions, sentencing cases but the two exceptions are the Victorian cases of R v GJB.  It is not in the bundle, your Honours, but there the President identified the case where it was proposed that the District Court judge actually impose a sentence on the appellant in relation to a second offence there as being an abuse of process and requiring intervention.  We give a reference to paragraph 19 of R v GJB, where the President made that point, the same point being made by Justice Redlich in the other Victorian case of Neill v County Court of Victoria.

There is a sense in which we have to accept that the kind of abuse of process that we are contending for here is novel in the sense that it is not often referred to and it is tied up with a sentencing process which we say here can now be seen to be inevitable but wrong, and wrong because the charge is being pressed in these circumstances.  It is not wrong for a charge of murder to be pressed in any circumstance, obviously enough; it is because of what has happened here where, unusually – and this is the unusual aspect of it, with respect – where we stand at the moment the applicant has almost completed a substantial sentence for the conduct in respect of which he is now charged with murder.

That, I might add, does not raise any issue or conflict with the murder exception cases.  Your Honours will know that there is a series of cases which ‑ ‑ ‑

GUMMOW J:   They were referred to in the first stay application in the Court of Criminal Appeal.

MR WELLS:   They were, yes, your Honour.  And they were the subject of debate then, but they were the cases that Thomas and Morris and Friel – were cases where there had been initial conviction and sentence for common assault or something of that kind, and then the victim had died, presumably within the year and a day, and there was then a charge of murder.  The issue that was raised there was a plea in bar issue.  But, of course, the rulings that were given in each case, which were supported in Connolly’s Case, Connolly v DPP in the House of Lords, particularly in the speech of Lord Morris of Borth-Y-Gest, where all of those cases were canvassed.  The result, of course, was that the charge of murder was not barred.

One of the implications from that, it might be said, was, well, that means that those courts contemplated double punishment.  It was inevitable that, if on the charge of murder the accused were found guilty – in those days it would be the extreme form of punishment – and no doubt that is one of the reasons why the murder exceptions were there, was, as it were, the charge of murder being a capital offence so overwhelmed anything that had happened before that it stood on its own.  But this Court in Pearce has set that matter right and has put it on a different basis.

The paragraph in which that has been done is paragraph 34 in Pearce where in the joint judgment their Honours identified two conflicting formulations of the principle, one deriving from R v Hoar, it is:

a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act.

Contrasting with the English cases, in particular the murder exception cases of which Thomas is one, where on the contrary it was said that the law was that a person was not liable to be punished twice for the same offence.  Pearce’s Case opted for the Hoar formulation.  One can see that very clearly in paragraphs 40 and following, all the way through to paragraph 49 of that joint judgment.

HAYNE J:   The first sentence in paragraph 41 is not unimportant, is it?

MR WELLS:   There is a third position, your Honour, from identifying good sentencing practice or positive rule of law and that is again to identify what we are now talking about as a precept or principle and clearly a guiding and controlling precept or principle.  But we respectfully submit that what comes clearly out of Pearce is a choice for the Hoar formulation which concentrates on the conduct or the Act and not on the offence.  The result of that, amongst of things, is that there is no basis beyond what Pearce has said for our propositions to be reformulated having regard to the murder cases.  They all proceeded pretty well on the basis that what was not to be punished twice was the same offence rather than the same Act.

FRENCH CJ:   In Pearce the common act, the infliction of grievous bodily harm, was also a common element in the definition of the offences.  Does it matter that that is not the same here?  I mean, the act in respect of which the applicant was convicted was the wounding with intent to inflict grievous bodily harm.  It was not the infliction of grievous bodily harm, it was the intent.  The breaking of the skin was enough coupled with the intent.  So those elements are different, are they not, from the elements of unlawful killing in the context of killing somebody with an intent to commit grievous bodily harm?  The only common element is the intent.  Can one equate the act and the element in the same way as you could in Pearce?

MR WELLS:   It is not necessary to, your Honour.  When we are talking about questions of double punishment as distinct from pleas in bar where elemental considerations arise and are very much to the forefront, when we are talking about punishment, then it is not necessary to stay to the formality of the strict elements of the offence.  What is being punished is the act.  What is being punished in the end is the particular circumstances, however they might be, which constitute those elements.  So when one comes to consider double punishment, our respectful submission is that staying with the generic elements is not required and, indeed, because we are talking about double punishment, the reverse is required.  One is really looking at not just the generic act, but the act for which one is punished, whatever that may be and that becomes very stark, we submit, in this case.

CRENNAN J:   Why does not backdating to the date of first being taken into custody obviate the Pearce problems totally?  I must be missing something because I cannot understand – you did say that in relation to this, the “how long” becomes very muted.  Already there has been a stay application, the end result of which it has been found not to be an abuse of process for the DPP to bring a prosecution in circumstances where there was the previous conviction for assault and this murder prosecution is subject to that.  That was the subject matter, as I understand it, of the first stay in relation to which special leave to appeal was not granted.  So the point on this application is a very narrow one.  It is contended that it is an abusive process for the DPP to proceed in relation to this prosecution for murder because of the potentiality for double punishment?

MR WELLS:   Yes.

CRENNAN J:   You have not accepted, when I have asked you, that if there could be backdating to the date of first being taken into custody, you have not accepted that that backdating of the minimum non‑parole period would not solve what I will call the Pearce problem.  That is what I cannot quite follow.

MR WELLS:   Your Honour, can I answer your question in two parts, first of all as to the previous stay application.  The submission that was put there was really related to plea in bar.  Now, your Honour is quite right in saying that actually it was not decided in the end on whether there was a plea in bar.  In part, I accept responsibility for that because we made the strategic decision to argue it as an abuse of process rather than a strict plea in bar, but it was directed towards the elements of the offence.  It was directed towards the principles of abuse analogous to a plea in bar, the general proposition being that Pearce is, as it were, pulled back and clarified and cleared up the reach of the strict plea in bar and that leaves a certain field open for the inherent jurisdiction to work in and that is where we were digging and delving. 

That was put aside but it was not focused upon the abuse we are talking about here which has arisen by reason of a new legislative framework that arose after that.  It is true that the legislation came into effect the same month that special leave was being sought on the first stay in this Court.  That is the coincidence.

CRENNAN J:   So the double punishment, if there is backdating back to the date of first being taken into custody, arises how?

MR WELLS:   Can I take your Honour to Pearce?

CRENNAN J:   Yes, certainly.

MR WELLS:   I do not seek to read more than a small part, but I have taken the Court to paragraph 34.  The discussion proper starts at paragraph 40 to which we have already been and a discussion therefore includes in paragraph 42 the proposition:

It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110.  The identification of a single act as common to two offences may not always be as straightforward.

I would want to emphasise that too in support of my response to your Honour the Chief Justice about the elemental approach.  Then paragraph 43, the last sentence:

Prima facie, then, he was doubly punished for the one act.

Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

Which is exactly in parallel to the question your Honour asks.  Answer:

To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender.  Such an approach is likely to mask error.  A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulate or concurrence, as well, of course, as questions of totality.

To which, your Honours, I would add by reference to what is subsequently said in the paragraphs that follow, that when the joint judgment says in that paragraph:

must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence –

must fix an appropriate sentence for each offence adjusted to take account of the common elements or common features of the offence and then consider questions of concurrency.  The purpose of concurrency and cumulation is not directed towards avoiding double punishment.  It is directed towards identifying whether the overall punishment applying, if you like, as well the totality principle should be identified as being in relation to one criminal transaction or more than one criminal transaction and which of those will determine, to some extent, whether the sentences should be served concurrently or cumulatively, but the double punishment aspect is not catered for and it is not the purpose of concurrency to deal with double punishment.

Double punishment is dealt with by the length of the sentence of imprisonment that is imposed, not the period of imprisonment that is served.  The period of imprisonment that is served is the how long question.  The length of imprisonment imposed is the double punishment question and that is why it links, in our respectful submission, with the public aspects of punishment, what the community requires.

CRENNAN J:   But that is where shortening the minimum non‑parole period gives a recognition for the common elements.

MR WELLS:   If we could do it, your Honour, but the difficulty ‑ ‑ ‑

CRENNAN J:   My questions have always been predicated on assuming backdating is available.

MR WELLS:   Backdating, but, your Honour, with respect, that is not shortening the punishment.  That is adjusting ‑ ‑ ‑

CRENNAN J:   Well, if you take a minimum non‑parole period as part of the punishment, I think one would have to accept that.

MR WELLS:   It shortens the period served, your Honour.  It does not, however, address at all the public aspect of double punishment.  All it does is to answer the question, how long?

CRENNAN J:   Is it not just the opposite side of the coin where someone is doing a life sentence for murder, commits an assault in gaol.  It is not an abuse of process to prosecute for that assault; it is obviously a discrete criminal act.  The fact that there is a life sentence in terms of the public aspects raises a query about whether there is no punishment for the subsequent assault because the person has already been sentenced to a life sentence of imprisonment.  There is no problem in that sort of circumstance if the statute so provides to extend a non‑parole period to reflect the fact that you are sentencing in relation to two different ‑ ‑ ‑

MR WELLS:   That is the point though, your Honour.  The difference between that and this is that it is a separate offence.  It is a separate act; it is not the same.

CRENNAN J:   Going back to your argument then, is it not going to apply to any occasion on which there is more than a charge for murder; robbery with violence and murder?  Is not the same argument going to be a problem because of the life sentence and the issue of double punishment?

MR WELLS:   Your Honour, up to a point, yes, but overall, no.  You see, for a start it arises as a sentencing issue at the point of sentencing.  We are not dealing with the present issue as an issue of sentencing in the sense that we are not at the sentencing stage.

CRENNAN J:   Does that raise a question, by the way, of splitting the trial early; Iorlano and authorities of that kind?

MR WELLS:   Splitting the trial, your Honour?

CRENNAN J:   Yes.  In other words, you could deal with these sentencing issues post‑sentence ‑ ‑ ‑

MR WELLS:   You cannot though, your Honour.

CRENNAN J:    ‑ ‑ ‑ if you get to that stage.

MR WELLS:   This is the problem with this case, your Honour, we cannot; the course is set.  Once we go to trial and if there is a conviction, there is no escape.  The judge has no discretions.  If we are talking about this case, there are no discretions.  The exceptions in section 32A which might enable the judge to impose a non‑parole period less than 20 years, are not exceptions that arise here at all.  The only one that is possible is if my client pleads guilty and that, of course, raises the other issue about unjust pressure.  The ordinary course would be that, for a start, it is not normal to prosecute in the one case for an offence in addition to murder.

CRENNAN J:   I understand.  I was just putting it to you as a hypothetical.

MR WELLS:   Well, your Honour, it may be one of the reasons why it is not done and if there is a murder conviction, then the other prosecution is not necessarily proceeded with.  In any event, there is an ability to adjust the sentence for the other in order to try to reflect common elements.  What is special about this is exactly that, that it is not possible to do any of that now because the sentence has been served.  That really takes us to paragraph 49, your Honour, in Pearce’s Case where it says, effectively, even though it might be considered that the overall sentence was “not disproportionate to the criminality”, nevertheless there is a flaw because of double punishment.  That, in our respectful submission, points out the very point that concurrency is not the method of alleviating double punishment; concurrency serves a different purpose and that is how we found our case, exactly on that.

Your Honours, what we would say before turning to the second path is that in the Court of Criminal Appeal our respectful submission is the analysis of Justice White was the correct analysis.  We will give your Honours reference to the paragraphs and the page in the application book.  It is application book 159 to 161, and it is paragraphs 134 to 139.  His Honour, in our respectful submission, correctly ‑ ‑ ‑

GUMMOW J:   Just before you develop that, Mr Wells. 

MR WELLS:   Certainly.

GUMMOW J:   Just before you develop that, Mr Wells, in the case of Batistatos (2006) 226 CLR 256, in the joint judgment we approve what Justice McHugh had said in a criminal case, Rogers 181 CLR 251 at 286. And what Justice McHugh said was:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:

(1)the court’s procedures are invoked for an illegitimate purpose –

I do not think that could be this case.

MR WELLS:   No.

GUMMOW J:   Three is:

(3)the use of the court’s procedures would bring the administration of justice into disrepute.

That may be difficult for you.  Two though is:

(2)the use of the court’s procedures is unjustifiably oppressive to one of the parties.

Can you just explain again what is the unjustifiable oppression?  What is the oppression and what is unjustifiable?

MR WELLS:   I am grateful to your Honour for the reference.  We omitted it but it completes what we have set out in paragraph 36 of our outline, which picks up Justice McHugh’s summary.  We there, in paragraph 36 on page 11 of our outline, place some emphasis on the third feature as summarised there, which is the use of the court’s procedures to bring the administration of justice into disrepute.  Your Honour, on the submission that I am presently making, which assumes backdating, assumes the power to backdate, a case based on oppression, unjustifiable ‑ ‑ ‑

GUMMOW J:   Wait a minute.  It is rather hard to sell to the public the notion of an unpunished murder, is it not?  That is why category three must have some difficulties for you.

MR WELLS:   Your Honour, to an uninformed public, yes.

KIEFEL J:   You mean the public who are not lawyers?

MR WELLS:   I am sorry, your Honour?

KIEFEL J:   The public who are not lawyers.

MR WELLS:   That should not be the basis upon which one makes the determination of principle, however, if the Court pleases.  The question is whether, as a matter of good principle and good justice, there is nevertheless reason to stay a murder charge given what has happened and given what otherwise is faced.  Now, on the path that I have been travelling down this morning I have said that I do not place the contention of abuse of process first and foremost on unjustifiable oppression of the applicant, for the reason that concurrency may answer the accused’s question “how long?” – that is, period of imprisonment – but it does not answer the question of principle which is raised in Pearce, and that is, what is the appropriate sentence to be imposed – and this is where the public and the community comes in, may it please the Court – and that involves addressing the public purposes of punishment and sentencing.

Thirdly, the submission assumes that regard need only be had to the total effective sentence to be served by the appellant.

In my submission, that too, with the greatest respect to Justice White, is incorrect, that the sequence of addressing the sentence that I have set out necessarily looks at overlapping elements and all factors necessary to be taken into account.  It does not only have regard to the total effective sentence but looks at the appropriate sentence for each matter accounted for overlapping elements. 

Accordingly, in my submission, the application for special leave should be dismissed.  Can I make one last comment.  We were when we were the Court on the last occasion asked to look at the question of suppression, suppression being the word that is used in this State.

GUMMOW J:   It is not the word used in this Court.

MR HINTON:   No.  It is derived from section 69A of the Evidence Act in this case which empowers a court to make a suppression order.  That is how it is framed.  The reasons are set out in both an annexure to the respondent’s written submissions and in ‑ ‑ ‑

GUMMOW J:   Anyhow, there is a practice note in this Court that unless something is done by this Court the anonymity is preserved.

MR HINTON:   If the Court pleases, I will say no more.  Those are my submissions, if the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Wells.

MR WELLS:   May it please the Court, three matters of reply.  The first takes us, I am afraid, back to section 32A of the Sentencing Act.  My learned puts the submission that there is a limit on the extent to which a sentencing court can fix downwards the non‑parole period where it is “satisfied that special reasons exist”.  In order to read subsection (2)(b) in that way it would be necessary to add additional words at the end of the paragraph where it says “fix such shorter non‑parole period as it thinks fit”, one would have to add “having regard and having regard only to the special reasons”, but what it says is “as it thinks fit” and what it represents, in our submission is a separate sentencing regime which is permitted if the “special reasons exist”.  The special reasons exist because the legislature has determined that those are the reasons which are put forward to induce the existence of special reasons.

FRENCH CJ:   The logic of it is you have regard to these matters and only these matters in deciding whether special reasons exist. 

MR WELLS:   That is right.

FRENCH CJ:   So, there is a kind of characterisation process that follows, having regard to those matters.  It is some sort of the evaluative judgment posited, I think.

MR WELLS:   But once one is satisfied, then the non‑parole period is that which is fixed as the sentencing court thinks fit.  In that respect, it would, under that alternative regime, and that is the way we would put it, it would have regard to, amongst others, section 32(7), which my learned friend also referred to, which is where in fixing – note that the same word is used the verb “fix” – in fixing this new regime non‑parole period, the sentencing court takes into account the period already served in relation to another sentence of imprisonment.  That is the first matter of reply.

The second matter of reply takes us back to section 30, my learned friend’s explanation for the phrase in subsection (1) “or the time at which”, which follows “must specify the date on which, or the time at which”.  In our respectful submission, that does not, as it were, signify the existence of any general discretion.  What that does is to confirm that subsection (1) is a provision which, as we had put it in our submission, concentrates on the duty of the judge to fix the commencement date and the time where you cannot actually fix a date is because of section 31 where it is proposed that the commencement date would be at a future time by reference to section 31, that is, following on the serving of a prior sentence of imprisonment. 

Your Honours will see in that respect that section 31 deals only with the power to direct.  It does not deal with questions of specifying.  That is because subsection (1) deals with the specifying and it does it by reference to the time at which, that is, on the expiry of the prior sentence of imprisonment.  That view of the phrase “or the time at which”, in our respectful submission, simply confirms the role of subsection (1) for which we contend. 

Finally, my learned friend submits that Pearce’s Case is about serving real time imprisonment.  We do not suggest that Pearce’s Case was not concerned with the amount of time served, but, in our respectful submission, the whole point of Pearce’s Case was to say that real time served is not the last word, that there is something more than that and it is concerned with fixing the appropriate sentence having regard to common elements.

Johnson’s Case says nothing differently and on the contrary, in our respectful submission, confirms that reading of Pearce’s Case, namely, that the analytical approach involves the step at which you adjust a sentence, as was done in Johnson for the purpose of avoiding common elements and that the concurrency issue is a separate issue and does not address or does not fully and sufficiently address that part.  To that extent and in that important way Pearce’s Case is not about real time in prison.

HAYNE J:   Just before you conclude, Mr Wells, this set of questions perhaps I should have raised earlier, but it goes to whether there should be a grant of leave.  As the decision of the Full Court presently stands, if your client is convicted at trial, the sentencing judge will be bound to approach the sentencing task on the footing that the judge has power to backdate, is that right?

MR WELLS:   Yes.

HAYNE J:   The judge will either choose or not choose to do so if there is a trial at which your client is convicted, is that right?

MR WELLS:   Yes.

HAYNE J:   If the judge chooses to do so, that is, to backdate to the date asserted against you by the respondent in this Court and permitted by the decision of the Full Court, what is left as the double punishment argument?

MR WELLS:   What is left is what I called our first route home, your Honour – that is, what I touched on in that last submission in response, that part of double punishment which is not related in any way at all to real time served in prison but related instead to what is the appropriate sentence.

HAYNE J:   Yes, I see.  On one view, that last question is wholly subsumed in the mandatory sentence for murder.

MR WELLS:   Well, that presents the very dilemma, we submit.  Your Honour will have our submission, and, of course, our case is there should be no trial, there should be no arraignment.

HAYNE J:   I understand that, but in aid of that you espouse a position which, if adopted, would lead to a construction of the Act antithetical to the interests of your client and contrary to that which presently is held by the Full Court of this State to be the appropriate construction, indeed a construction which the respondent embraces in this Court.

MR WELLS:   I am not sure if your Honour is seeking a response from me.

HAYNE J:   No, but that is the consequence.

MR WELLS:   If your Honour pleases.  I am reminded, your Honour, as a postscript to my last point in reply, Johnson’s Case, that the submission that is put by my learned friend, the Solicitor-General, in relation to Pearce would have the result that Pearce would have been decided exactly the reverse way, if that were the correct understanding of Pearce, which our contention is that it is not.  May it please the Court.

FRENCH CJ:   Thank you, Mr Wells.  I thank counsel for their assistance.  The Court will reserve its decision and will adjourn to 4.00 pm in Court No 2 today.

AT 2.57 PM THE MATTER WAS ADJOURNED