On appeal from the Supreme Court of the Northern Territory
Representation:
D Grace QC with R R Goldflam for the appellant (instructed by Northern Territory Legal Aid Commission)
D J Bugg QC with G C Fisher for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Intervener:
D M J Bennett QC, Solicitor-General of the Commonwealth, with A R Beech intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Putland v The Queen
Criminal law – Sentencing – Offences against laws of the Commonwealth – Where offender tried in Territory court for indictable offences against laws of the Commonwealth – Judiciary Act 1903 (Cth), s 68(1) – Where Territory legislation permitted aggregate sentences for indictable offences – Whether aggregate sentences were permissible in the case of Commonwealth offences.
Constitutional law – Discrimination – Whether Territory legislation permitting aggregate sentencing resulted in constitutionally impermissible discrimination between federal offenders.
Words and phrases – "so far as they are applicable".
Crimes Act 1914 (Cth), s 4K, Pt 1B. Judiciary Act 1903 (Cth), s 68. Sentencing Act (NT), s 52.
GLEESON CJ. The appellant was charged in the Supreme Court of the Northern Territory with offences against the Crimes Act 1914 (Cth) ("the Crimes Act") and offences against the Bankruptcy Act 1966 (Cth). All were indictable offences. The Supreme Court was exercising federal jurisdiction. The appellant pleaded guilty. Pursuant to Northern Territory legislation referred to below, the sentencing judge imposed a single, aggregate sentence of imprisonment for four years, and ordered that the appellant be released after serving 12 months upon entering into a bond to be of good behaviour for three years. The appellant appealed against the sentence to the Northern Territory Court of Criminal Appeal. Most of the grounds of appeal are presently immaterial. The appeal was dismissed. The one ground of appeal pursued in this Court is that the sentencing judge did not have power to impose an aggregate term of imprisonment. The Court of Criminal Appeal (Martin CJ, Mildren and Riley JJ) held that, by operation of s 68 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), the law of the Northern Territory permitting an aggregate sentence applied, and that the sentencing judge had the power he purported to exercise. In this respect, the Court of Criminal Appeal followed an earlier decision of the South Australian Court of Criminal Appeal, R v Jackson[1]. South Australia also has legislation which permits aggregate sentences in the case of indictable offences.
The Sentencing Act (NT) ("the Sentencing Act") provides:
"52 (1) Where an offender is found guilty of 2…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Putland v The Queen [2004] HCA 8
Case
[2004] HCA 8
Decision Date
CaseChat Overview and Summary
The case of *Putland v The Queen* concerned an appeal to the High Court of Australia regarding the sentencing of an offender convicted of Commonwealth indictable offences in the Supreme Court of the Northern Territory. The appellant, Putland, had pleaded guilty to offences under the *Crimes Act 1914* (Cth) and the *Bankruptcy Act 1966* (Cth). The sentencing judge imposed an aggregate term of imprisonment of four years, without specifying individual sentences for each offence, by invoking Northern Territory sentencing legislation. Putland argued that there was no federal law authorising such an aggregate sentence and that it was therefore unlawful.
The central legal issue before the High Court was whether Territory legislation permitting aggregate sentences for indictable offences could be applied to Commonwealth offences, and if so, whether this resulted in constitutionally impermissible discrimination between federal offenders. The appellant contended that the absence of a specific federal power to impose aggregate sentences meant that the Territory law could not be applied, rendering the sentence a nullity. He also argued that such an approach lacked transparency and led to unjust punishment.
The High Court, in dismissing the appeal, reasoned that section 68(1) of the *Judiciary Act 1903* (Cth) effectively "picks up" and applies relevant State and Territory laws to the prosecution and punishment of federal offenders. The Court affirmed that this legislative choice, which has historically led to some variations in sentencing depending on the jurisdiction, is permissible. Relying on previous authority, particularly *Leeth v The Commonwealth*, the Court held that the application of Territory sentencing legislation, even if it allowed for aggregate sentences not available under federal law alone, did not constitute constitutionally impermissible discrimination. The Court concluded that the policy of the *Judiciary Act* was to integrate the administration of federal criminal law with that of the States and Territories, and that this included the application of their sentencing procedures.
The appeal was dismissed, upholding the aggregate sentence imposed by the sentencing judge.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
My conclusion is influenced not only by the analysis of the language of the intersecting legislation but also by an important consideration of legal principle. Subject to law, federal offenders, convicted of indictable offences, should ordinarily be treated uniformly and without discrimination, wherever their conviction occurs in the Commonwealth. In sentencing they should be so treated unless a valid federal law authorises or contemplates a relevant difference. In this case, none does.The facts, legislation and legislative history The facts that led to the appellant's conviction of the offences against the Crimes Act 1914 (Cth) and the Bankruptcy Act 1966 (Cth) are described in the reasons of Gummow and Heydon JJ ("the joint reasons")[79]. There set out are the terms of the Sentencing Act which the judge of the Supreme Court, sentencing the appellant, (Bailey J) invoked to impose on him an "aggregate term of imprisonment" of four years. [79]Joint reasons at [27]-[29]. In sentencing the appellant in this way, the judge did not identify the individual sentences which he imposed for each of the federal offences to which the appellant had pleaded guilty. The appellant complains that there was no authority in, or under, federal law to authorise such a sentence. He asserts (and it was common ground) that there was no authority at common law[80] to sustain such a sentence[81]. Accordingly, whilst aggregation in punishment in the sense of the consideration of its totality was to be taken into account[82], no warrant existed in law for the sentence imposed. On this ground, the appellant submitted that the sentence was unlawful. [80]Ryan v The Queen (1982) 149 CLR 1 at 4 per Stephen J, 25 per Brennan J. See Warner, "General Sentences", (1987) 11 Criminal Law Journal 335 at 337-339.[81]Applied to the trial by the Judiciary Act, s 80.[82]Crimes Act, s 16A(2)(c): "In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct". See also s 16B ("Court to have regard to other periods of imprisonment required to be served") and s 16BA ("Taking other offences into account"). The appellant also argued that the aggregate sentence was unjust for its lack of transparency and resulted in the imposition upon him of an excessive punishment. In the absence of identification of the components of the sentence, the aggregate sentence presented serious disadvantages for him and for the just punishment of offenders throughout Australia convicted of the same or similar indictable federal offences. The appellant appealed against his sentence to the Court of Criminal Appeal of the Northern Territory. That court, in accordance with the authority of this Court[83], held itself bound to apply the majority view adopted by the Court of Criminal Appeal of South Australia[84] concerning the availability of the power in such a case to impose an aggregate sentence. That decision was to the effect that, in imposing sentences upon an offender convicted of indictable federal offences, s 68 of the Judiciary Act "picked up" a State sentencing statute so far as that statute permitted the imposition of a single "aggregate" sentence and applied it to the sentencing of a federal offender. Apart from such authority, the Court of Criminal Appeal went on to satisfy itself that this was the preferable view of the operation of the Judiciary Act[85]. In this regard it drew upon the reasons of Gleeson CJ in R v Gee[86], citing in turn the opinion of Dixon J in 1934 in Williams v The King [No 2][87] to the effect that the general policy disclosed by the Judiciary Act was to "place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice". As I shall show, in relevant ways that policy has been modified by later developments in federal law.[83]Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; see Putland v The Queen [2003] NTCCA 3 at [10].[84]R v Jackson (1998) 72 SASR 490 (Perry and Nyland JJ; Millhouse J dissenting).[85]Putland v The Queen [2003] NTCCA 3 at [31].[86](2003) 77 ALJR 812 at 814 [6]; 196 ALR 282 at 284-285.[87](1934) 50 CLR 551 at 560.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW AND HEYDON JJ
KIRBY J
(dissent)
CALLINAN J
The appellant submits that the application of s 52 of the Sentencing Act (and, no doubt, its South Australian counterpart) would result in constitutionally impermissible discrimination between federal offenders. This submission cannot stand with the decision of this Court in Leeth v The Commonwealth[24]. Section 68 of the Judiciary Act reflects a permissible legislative choice[25], and one which, for a century, has resulted in some differences in the sentencing of federal offenders according to where they are sentenced. Section 68 applies State and Territory laws to important aspects of criminal proceedings in relation to federal offences. If State and Territory laws were all necessarily the same, then there would be little point in having State and Territory legislatures.[24](1992) 174 CLR 455.[25]R v Gee (2003) 77 ALJR 812 at 814 [7]; 196 ALR 282 at 285.Conclusion The appeal should be dismissed. In the Supreme Court of the Northern Territory ("the Territory"), the Director of Public Prosecutions for the Commonwealth, prosecuting in this behalf for the Queen, charged the appellant on two counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) ("the Crimes Act")[26] and two counts each of breaching s 266(1) and s 269(1)(b) of the Bankruptcy Act 1966 (Cth) ("the Bankruptcy Act"). Section 266(1) of the Bankruptcy Act proscribes certain dispositions with intent to defraud creditors and s 269(1)(b) the conduct by undischarged bankrupts of various business activities. The maximum penalty for each of the bankruptcy offences was three years imprisonment and that for the contravention of s 29D of the Crimes Act was 10 years imprisonment.[26]Section 29D was repealed by Item 149, Sched 2, Pt 1 of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) and now appears as s 134.1 of the Criminal Code Act 1995 (Cth). Section 4G of the Crimes Act classifies as indictable offences offences against laws of the Commonwealth which are punishable by imprisonment for a period exceeding 12 months. Section 69(1) of the Judiciary Act 1903 (Cth) ("the Judiciary Act") requires the prosecution by indictment of indictable offences against the laws of the Commonwealth. The counts in the indictment of the appellant alleged commission of the offences at Alice Springs. Section 70A of the Judiciary Act applied and permitted the trial to be held in any State or Territory[27]. This provision was made in furtherance of the concluding words of s 80 of the Constitution, "if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes".[27]See Fittock v The Queen (2003) 77 ALJR 961 at 962 [7]; 197 ALR 1 at 3. The appellant pleaded guilty to all counts and the sentencing judge (Bailey J) sentenced him to what was identified as "an aggregate term of imprisonment" of four years. On appeal to the Court of Criminal Appeal, the appellant submitted that the sentencing judge had erred in law and lacked the power to impose an aggregate term of imprisonment upon his conviction for multiple federal offences joined in the same indictment. The consequence, it was submitted, was that the sentencing order was a nullity. The Court of Criminal Appeal (Martin CJ, Mildren and Riley JJ) dismissed the appeal. In this Court, the appellant renews those submissions. The Attorney-General of the Commonwealth has intervened in support of the Director of Public Prosecutions.Section 68 of the Judiciary Act
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GUMMOW AND HEYDON JJ,
CALLINAN J