Purdey v The Queen

[1994] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S146 of 1993

B e t w e e n -

GARY JOHN PURDEY

Applicant

and

THE QUEEN

Respondent

Second Respondent
  Application for special leave
  to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 9.54 AM

Copyright in the High Court of Australia

MR M.L. SIDES, QC:   May it please the Court, I appear for the applicant.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR N.R. COWDERY, QC:   May it please the Court, I appear for the respondent with my learned friend, MR P.G. BERMAN.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN J:   Yes, Mr Sides.

MR SIDES:   Your Honours, I was informed by the Registry that the Court did not have access to two of the items that we had on our list.  I hand multiple copies up to Your Honours.  The first is the Macquarie Encyclopedic Dictionary and the second is the judgment of the Court in the application of Hitchins.

It is our submission, Your Honours, that this application raises two important questions:  the first involving the interpretation of section 13A(5) of the Sentencing Act.  The Court will note from Part IV of our written submissions that there have been three approaches to this question, and anomalies in relation to each approach have been adverted to by the court below and the judge at first instance.

The second question is whether the applicant has been the victim of a miscarriage of justice relating to the commencement date of his substituted sentence, having successfully pursued his appeal against conviction.  Your Honours, 13A was inserted as an amendment to the Sentencing Act in 1989 at the same time as section 19A was inserted into the Crimes Act, replacing section 19 and creating life as the maximum penalty for murder, rather than a mandatory sentence of life, as had previously been the case under section 19, unless there were mitigating circumstances affecting the blameworthiness of the offender, in which case a determinate sentence could be imposed and, as mentioned in the prior application, life sentences under section 19 could result in prisoners being released to licence.

The maximum penalty under section 19 is different to a life sentence imposed under its predecessor and does not allow for release to licence under section 463 of the Crimes Act.  That section was repealed at the same time as section 13A of the Sentencing Act and 19A of the Crimes Act were introduced.

Prior to section 19A people serving life were released to licence by administrative decision.  Section 13A now allows prisoners serving a life sentence imposed before the operation of section 19A to apply to the Supreme Court to have a minimum term and an additional term substituted for the life sentence.  The power is to be found in subsections (4) and (6).

Although the minimum and additional term are regarded as the sentence instead of the life sentences that had previously been served, the provisions do not apply all the existing law to applications under section 13A.  For example, section 13A(7) says that Part II of the Sentencing Act does not apply to minimum additional terms substituted under section 13A.

BRENNAN J:   What is the question of general public importance?

MR SIDES:   The question of general public importance is twofold.  Firstly, is the interpretation of subsection (5) in relation to what should be the commencement date of sentences substituted under section 13A.

BRENNAN J:   Why is that a matter of any importance?

MR SIDES:   Because there have been at least to this point in time in the court below three approaches to this question; two of them which says there is no discretion.  One of them, as Your Honours will see on page 7 of our submissions, the dissenting judge in the court below - and it seems that Justice Grove in the case of Terry Mark Hitchins agrees with him - that the second condition in subsection (5) where a person is “remanded in custody for the offence”, means just that, and it matters not that that person may, at the same time, have been held in custody for other reasons.

The majority in the court below, and the majority in the subsequent case of Gary John Stephens, found that the second condition in subsection (5) only operated if the remand in custody for the murder was the only or the exclusive reason for the person being held in custody.

BRENNAN J:   These can be a matter of adjustments.  In this case it was 19 years and 4 months, was it not?

MR SIDES:   On the interpretation of the majority in Stephens’ case, they said that there was no opportunity for adjustment.  You either met one condition or the other.  The Chief Justice in the court below, and Justice Allen in Stephens’ case said, “Well, there are two possibilities and the judge has a discretion to choose between one or the other.”  But the majority in Stephens’ case, the later case, said there was no discretion to choose between one or the other.

What happened in this case, the facts of this case: the man was arrested in 1980 and remanded for the murder in 1980.  He went to trial for the murder in February of 1982 and was convicted and sentenced to life on 24 February 1982.

BRENNAN J:   Let me understand this correctly.  Under subsection (5), as interpreted in the court below in this case, the sentence does not commence to run until he is in custody with reference to the murder only.  Is that right?

MR SIDES:   No.  What the court below said is that the sentence would only commence on the date of the first remand if he was in custody only for the murder on that date.

BRENNAN J:   That is right.

MR SIDES:   And if that was not the case, then it commenced on the date of the original sentence, which we take to mean the original life sentence.

BRENNAN J:   If that is so, that is that.

MR SIDES:   We say that it was wrong for the majority in the court below to read into the words “remand in custody for the offence” the words “solely or exclusively”.

BRENNAN J:   Perhaps it is, perhaps it is not.  But in all events the law, as so defined, is certain for New South Wales.

DAWSON J:   There is a certain logic in it, is there not, that if the remand is for the offence then he is in custody for the offence and therefore it should be taken into account?  But if it is for something   else - - -

MR SIDES:   But a person can be in custody for a multiplicity of reasons.

DAWSON J:   True.

MR SIDES:   And there have been legislation in this State where it makes clear, if what the majority approach of the interpretation is to be taken, it has been clearly expressed in the legislature, and we make reference to that - - -

DAWSON J:   There is a logic in it, is there not?  Because if he is there for something else then he would be there anyway, whether or not he had committed the offence.

MR SIDES:   Yes, but you see the person might be in custody for a multiplicity of reasons.  The Chief Justice seems to accept the interpretation of Justice Mahoney because he claims it is consistent with sentencing principles, namely that if you are in custody exclusively for an offence before sentence then the sentence must be backdated to the date of arrest.

DAWSON J:   All I am suggesting is that is not unreasonable, is it?

MR SIDES:   But the sentencing discretion in relation to backdating, this section aside, is much broader than that stated in McHugh’s case.  What McHugh’s case says is if your presentence custody is exclusively referable to the matter you are being sentenced for then there must be a backdate.  But that does not mean the judge does not have a discretion in other circumstances to backdate.  If a person is already serving a sentence and comes up for sentence today, the sentencing judge has a discretion to backdate and make this sentence partly or totally concurrent with the pre‑existing sentence.

DAWSON J:   No doubt, but then one comes to subsection (5) and one has to determine what it means.

MR SIDES:   Yes.  It has to be interpreted, we would submit, in context.  The use of the word “remand”, we would submit, denotes a remand in custody, denotes a holding in custody for the offence.  We submit that the legislature picks up the scheme of the Justices Act which provides the magistrate with the power to adjourn and it provides the power, under section 34 of the Justices Act to, in the course of making an adjournment, to remand, and that means remand in custody.

BRENNAN J:   Mr Sides, if I was sitting tomorrow exercising jurisdiction under section 13A and I had before me the judgment of the Court of Criminal Appeal in Purdey v The Queen and I had to exercise the power set out in subsection (4), would I take into account the fact that in circumstances similar to Purdey the sentence would commence as from the date on which the sentence of life imprisonment was imposed.

MR SIDES:   That approach would involve a grave miscarriage of justice.

BRENNAN J:   Why?

MR SIDES:   Because Purdey, we would submit, has effectively been punished by a period of two years because he successfully pursued an appeal to the Court of Criminal Appeal.  He was first convicted of   murder - - -

BRENNAN J:   But why is he being punished?  The exercise of discretion is as of now.

MR SIDES:   Yes, but you see the point that I am making is this:  that had he not pursued, and successfully pursued his conviction against murder, his redetermined sentence would have commenced in February 1982, not in February 1984.

BRENNAN J:   And would it have been 19 years and 4 months?

MR SIDES:   We do not know that.

BRENNAN J:   Of course we do not know that, because it is an exercise of discretion.

MR SIDES:   But the point is that we would submit it must be clear that the judge is taking into account the presentence custody.  What the judge did in this case was to regard the three-odd years between November 1980 and February 1984 as being exclusively referable to the armed robberies.  But that was not the case at all because he was also in custody for the murder.  He was held in custody on remand in that period for the murder.  If the majority in Stephens is right, the discretion says if he was not exclusively in custody for the murder at the time of his first remand, then the only other possibility for the commencement date is the date of the life sentence commencing, that is the 1984 date.

Now, there was no opportunity, as there would be at general law - if the general law in relation to the discretion as to the commencement date applied then on a 13A application the judge could have commenced the redetermined sentence in February 1982.  That was not the discretion open to him.  And, accordingly, if the majority are right and certainly if the Chief Justice is right as to the two options, the sentence should have commenced on the earlier date.  We would respectfully submit that it is unreasonable not to interpret the section in a way that is flexible to prevent the potential for miscarriage of justice as we submit occurs here, and you cannot and you will not always be able to adjust the overall sentence to take into account a backdate that might otherwise be regarded as a windfall and, indeed, to do so would be a breach of the principle of proportionality.  You cannot extend the overall sentence merely to accommodate the fact that you are backdating.

DAWSON J:   But His Honour here did take into account the fact that the applicant had served some three years and four months in custody, referrable only to other crimes.

MR SIDES:   Yes, but you see he was in custody for the murder as well, and had he not successfully pursued his appeal, had he said, “Well, I will live with my life sentence,” this redetermined sentence would have commenced in 1982.

DAWSON J:   But it may not have been the redetermined sentence that was actually imposed, that is the point that - - -

MR SIDES:   It may not have been, but there is ‑ ‑ ‑

TOOHEY J:   But, that is your difficulty, is it not?  You seem to be treating subsection (5) as if it determines the length of sentence, rather than the commencing date.

MR SIDES:   You see, it determines the commencement date but if a person sentenced, this man, if he had not appealed and he was sentenced to commence under 13A in 1982 and the court tacked on two years on to the head sentence to reflect the fact that the backdate which the court regarded as a windfall, that would be a breach of the principle of proportionality.  You cannot extend a sentence simply because in the process of backdating that sentence is being concurrent.  What the legislature intended was to substitute the executive decision making in this way in a way that did not prejudice life prisoners.  We would respectfully submit that bearing in mind that life sentences were never cumulative on other sentences, bearing in mind it was rarely ever that a commencement date for a life sentence was announced, bearing in mind you cannot accumulate a sentence on a life sentence, the executive would determine release, no doubt, in relation to all the offences, and they would no doubt determine it from the commencement date of the custody, not when the life sentence might formally have commenced under section 441A of the Crimes Act because the commencement date was not announced.  We would respectfully submit that what has happened here is tantamount to a mechanism that would discourage people from pursuing their rights of appeal because they would lose the benefit in an application of this type to a backdate.  Those are our submissions, Your Honours.

BRENNAN J:   Thank you, Mr Sides.  We need not trouble you, Mr Cowdery. 

This application turns on the interpretation of a phrase in the subsection of the Sentencing Act 1989 which is peculiar to New South Wales.  The question which the applicant wishes to canvass on appeal is merely one of statutory interpretation involving no general principle.  The question is not of general public importance.  We would add that as a matter of first impression the answer given to the question by the Court of Criminal Appeal seems to be right.  For these reasons special leave will be refused.

AT 10.11 AM THE MATTER WAS ADJOURNED SINE DIE