Putland v The Queen
[2003] HCATrans 418
[2003] HCATrans 418
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D11 of 2003
B e t w e e n -
ROBERT JOHN PUTLAND
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON WEDNESDAY, 22 OCTOBER 2003, AT 11.00 AM
Copyright in the High Court of Australia
MR D GRACE, QC: If the Court pleases, I appear with, MR R.R. GOLDFLAM, for the appellant. (instructed by Northern Territory Legal Aid Commission)
MR D.J. BUGG, QC: If the Court pleases, I appear with, MR G.C. FISHER, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia:If the Court pleases, I appear with my learned friend, MR A.R. BEECH, for the Attorney‑General, intervening in support of the respondent. It has been agreed between the Director and myself that we will divide up the arguments, so we will not duplicate it and that I will go first. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Mr Grace.
KIRBY J: Mr Grace, I have a recollection that when special leave was granted in this case there was some condition imposed by the Court concerning the appearance of your client in Adelaide on this day. Is that correct or not?
MR GRACE: No, appearance ‑ ‑ ‑
KIRBY J: Is on the day of judgment, is it?
MR GRACE: On the day of judgment, yes.
KIRBY J: I see, thank you.
MR GRACE: Your Honours, the question in this case is whether there is a power under any Commonwealth legislation to impose an aggregate sentence, whether in terms provided by the Crimes Act (Cth) or whether it was capable of being picked up by section 68 of the Judiciary Act.
GLEESON CJ: It being the Northern Territory legislation?
MR GRACE: Yes.
GLEESON CJ: Empowered judges who were sentencing for multiple offences in their discretion to impose an aggregate sentence?
MR GRACE: Yes.
KIRBY J: Would you explain exactly what you understand by an aggregate sentence?
MR GRACE: It is one global sentence imposed for two or more offences.
GLEESON CJ: Where is the Northern Territory statute?
MR GRACE: It is contained in a green folder that your Honours have been provided by the Attorney‑General, plus in other material, but it is most convenient in this folder. It is behind tab 2.
KIRBY J: Is not the power to impose an aggregate sentence – leave aside for a moment whether you can do it – is not it a facility that tends to favour recognition of the principle of totality that we were discussing in the last case to avoid the risk that by taking bits and pieces that you will impose an excessive sentence, to impose an aggregate sentence facilitates looking at the total criminality?
MR GRACE: It may or may not. One just does not know in a given case.
KIRBY J: One would think that it tends to because it allows a judge to stand back from the particularity of the multiple offences that are provided by statute and look at the aggregation of the circumstances of the criminality of the case.
MR GRACE: Yes.
KIRBY J: It seems a very sensitive type of provision if it is possible ‑ ‑ ‑
MR GRACE: Yes.
GLEESON CJ: Now, you were going to show us the provisions.
MR GRACE: Yes, section 52(1).
GUMMOW J: Now, what date was this introduced? The Act is 1995, is it, the Northern Territory statute?
MR GRACE: Yes.
GUMMOW J: It postdates, does it, the sentencing division in the Crimes Act?
MR GRACE: Yes, significantly, your Honour, by at least five years. Section 52(1) provides:
Where an offender is found guilty of 2 or more offences joined in the same information, complaint or indictment, the court may impose one term of imprisonment in respect of both or all of those offences but the term of imprisonment shall not exceed the maximum term of imprisonment that could be imposed if a separate term were imposed in respect of each offence.
GLEESON CJ: Now, the difference between this legislation and the Commonwealth legislation is the presence of the word “indictment”?
MR GRACE: Yes.
GLEESON CJ: It is the absence of the word “indictment” from the Commonwealth legislation that means you cannot apply Commonwealth legislation direct?
MR GRACE: Yes.
GLEESON CJ: If that is right, as a matter of construction?
MR GRACE: Yes, in relation to matters on indictment.
GLEESON CJ: Tell me – let us assume a case where there is no doubt about the existence of this power and an aggregate sentence is imposed – what happens if there is then a successful appeal against conviction for one of the offences but an unsuccessful appeal against conviction in relation to another offence?
MR GRACE: The whole sentencing discretion must be reopened. This Court dealt ‑ ‑ ‑
GLEESON CJ: I see. So you just resentence the offender?
KIRBY J: That does happen in Courts of Criminal Appeal.
MR GRACE: Yes. This Court dealt with that issue in the case of McL (2000) 203 CLR 452 which was a ‑ ‑ ‑
KIRBY J: We would not have resentenced. We would have sent it back to the Court of Criminal Appeal to decide whether it would do so or would send it back to a trial judge to do so?
MR GRACE: Yes.
GLEESON CJ: Now, why is not that section of the Sentencing Act (NT), section 52, picked up by the Judiciary Act?
MR GRACE: For a number of reasons, we say. Firstly, Part 1B – and I am talking about matters which are proceeded by way of charges on indictment.
GUMMOW J: Wait a minute. Section 68 of the Judiciary Act predates the division in the Crimes Act, does not it?
MR GRACE: Yes.
GUMMOW J: Section 68(2) would be the relevant provision, would it not, of the Judiciary Act?
MR GRACE: Yes, your Honour.
GUMMOW J: Section 68(7) says the phrase “any such trial or conviction” includes sentencing matters ‑ ‑ ‑
MR GRACE: Yes, that is qualified, your Honour.
GUMMOW J: Is what?
MR GRACE: That is qualified, with respect. Section 68(7) refers to a particular procedure where a person pleads guilty in summary court and then is committed to the higher court to be sentenced. So it is a peculiar procedure which appears to exist in certain jurisdictions.
GUMMOW J: The phrase “trial and conviction” would ordinarily include sentencing, would it not, in 68(2)(c), in any event?
MR GRACE: In that circumstance, sentencing is included, but we say there is no warrant for the conclusion that sentencing is included in section 68(1) and (2) in the particular circumstances of this legislation.
GLEESON CJ: Just before you pass from (7), the last three lines after the comma:
the reference in subsections (1) and (2) to any such trial or conviction shall be read as including any conviction or sentencing in accordance with any such provisions.
That is a reference back to the reference to provisions in line 3, is that right?
MR GRACE: Yes. So, in that limited circumstance, what the Judiciary Act is saying is that the reference in section 68(1) and (2) includes the sentencing.
GLEESON CJ: Now, coming back to section 68(2), do you say the provisions of section 68(2) do not cover sentencing?
MR GRACE: No. I say that “The several Courts of a State or Territory” may exercise jurisdiction in relation to sentencing, but subsection (2) is really not relevant to the picking up in this case, because subsection (1) precludes the picking up of a power to sentence as against a procedure.
GLEESON CJ: What is the distinction you are drawing?
MR GRACE: The distinction I am drawing is between the word “power” and the word “procedure”.
KIRBY J: Where is the word “power”?
MR GRACE: The word “power” ‑ ‑ ‑
KIRBY J: Or you are relying on the word “procedure”, are you, in juxtaposition of power?
MR GRACE: Yes, because section 68(1) refers to:
The laws of a State or Territory respecting the arrest and custody of offenders . . . and the procedure for –
and lists a number of matters –
shall . . . be applied so far as they are applicable ‑ ‑ ‑
KIRBY J: Are any of those wide enough to include sentencing? Now, “their trial and conviction on indictment”, that seems to be anterior to sentence.
MR GRACE: They are wide enough to include sentencing.
KIRBY J: I am not sure about that. Trial and conviction is normally in our system anterior to sentencing.
MR GRACE: Yes, they are wide enough to include sentencing, but they do not, because we submit that Part 1B is a complete legislative scheme on its face in the way ‑ ‑ ‑
GUMMOW J: Look, you have to say it is an implied repeal of 68. You have two federal statutes sitting side by side and one is later in time than the other. Do you say there is some conflict between the two? You are trying to cut down the general words of 68, are you not? How do you manage to do that other than by an implied repeal?
MR GRACE: Only in the Moorhouse sense.
GUMMOW J: What is the Moorhouse sense?
MR GRACE: The decision of this Court in Moorhouse which refers to the issue as to whether a Commonwealth Act evinces an intention to cover the field and we say ‑ ‑ ‑
GUMMOW J: There is no covering the field here. There is no State law involved. That is a complete, if I may say so, fallacy that runs through the written submissions, which is rather vexing to have to cope with. There is no question of covering the field in 109 parlance, is there? You have two statutes of the same legislature.
MR GRACE: We submit the Part 1B is a complete legislative scheme covering the field in respect of Commonwealth sentencing.
GUMMOW J: That is a meaningless statement unless you accommodate section 68(2) and how, as a matter of legal mechanics, do you manage to do that other than by saying it impliedly repeals it?
MR GRACE: I do not go that far.
KIRBY J: Why do you not?
GUMMOW J: Why do you not? You have to, it seems to me.
KIRBY J: If you have a particular scheme which is dealing with specificity and particularity with a particular set of circumstances, then you have to say that to the extent that that is inconsistent with a general scheme, it is to that extent narrowing the operation of the general scheme, that is to say, it is repealing its operation in those circumstances.
MR GRACE: I have misunderstood what your Honour Justice Gummow said. I understood your Honour to be saying that section 68(1) is repealed absolutely by the Crimes Act.
GUMMOW J: Of course not.
MR GRACE: In relation to the circumstances of sentencing for Commonwealth offenders, yes, I do accept that as being the position.
GUMMOW J: Now, impliedly repealed in toto because they cannot stand together?
MR GRACE: Yes.
KIRBY J: Now, where is Part 1B? Where is the part that you are relying on as the particularity?
GLEESON CJ: That is what we have spent the last half day looking at, is it not?
MR GRACE: Yes.
KIRBY J: But where is the provision in Part 1B that is relevant to this appeal? It is not the same issue.
MR GRACE: There is no power in Part 1B to impose an aggregate sentence.
KIRBY J: But I thought we had learned in the other case that if, in fact, there is nothing said about a matter that the common law remains to fill the gaps, as it did in general deterrence, and, as you there asserted, it did in any principles of concurrence, so why not in matters of aggregation? That is why I began this dialogue with asking you, was not the principle of aggregation, as it were, the other side of the coin of totality? It is something which seems sensible.
MR GRACE: There is no explicit power to aggregate in Part 1B and the situation at common law is that there is no power to aggregate sentences.
KIRBY J: That is the starting point in your argument, is it not?
MR GRACE: Yes.
KIRBY J: At common law there is no power to aggregate. Let us assume for the moment that is right. Therefore you need legislation to do it. In some of the States and the Territory you have that legislation. The federal sentencing scheme which was enacted did not contain it. Therefore by implication it is omitted, or it is not provided and therefore does not exist.
MR GRACE: Yes.
KIRBY J: In a particular federal sentencing regime.
MR GRACE: Yes, and it is highlighted by the fact that section 4K was introduced into the Crimes Act in 1987 after being removed in a slightly altered form from the Acts Interpretation Act into which it was put in 1984 for the first time.
GLEESON CJ: Now, you seem to have general support, as I understand it, from all courts that have considered this for your proposition that section 4K only applies to summary offences.
MR GRACE: Yes.
GLEESON CJ: It is because of that that we go straight to section 52 of the Northern Territory Act and consider the Judiciary Act.
MR GRACE: Yes.
GLEESON CJ: Assuming you are right – you have all the authorities on your side so far – that 4K only permits aggregation in relation to summary offences, what follows from that, in your argument, in terms of the capacity of section 68 to pick up local rules, if I can use that expression, like section 52 of the Northern Territory Act?
MR GRACE: I go back to my comment that Part 1B contains a complete legislative scheme for the sentencing of federal offenders and where the Commonwealth Parliament determines ‑ ‑ ‑
GUMMOW J: This expression “complete legislative scheme”, what does that mean, where there are other statutes of the same Parliament? It is an implied repeal argument, is it not, of so much of the other earlier statute which bears on the subject?
MR GRACE: In part, it may well be, but ‑ ‑ ‑
GUMMOW J: It cannot be anything else, can it?
MR GRACE: No, your Honour. I can take your Honours through Part 1B, which I will, but where the Commonwealth Parliament determined that State or Territory laws or procedures would be applied in the sentencing of Commonwealth offenders, it specified it.
GLEESON CJ: Justice Gummow asked you what you meant by this expression “complete legislative scheme”. You have spent the last half day trying to persuade us that it is not a complete legislative scheme and that it allows common law principles.
MR GRACE: Yes, but that is talking about the application of principles rather than the application of powers. The imposition of an aggregate sentence must relate to a power – it must be based upon a power. A common law principle of aggregation is a different issue as to whether that is permissible or not. At common law aggregate sentencing was unknown.
GLEESON CJ: There is no common law power of aggregation.
MR GRACE: No. So the point I make is that ‑ ‑ ‑
KIRBY J: Why is there not? It may not have existed historically, but if you take seriously the principle of totality of sentencing, why is aggregation of sentencing not something which follows from that principle and is therefore a sensible thing for judges to be able to do? Why do you need legislation to permit that?
MR GRACE: Because of comments and policy and philosophies expressed in cases such as Pearce which indicate appropriate penalties should be fixed for each offence or each incursion into ‑ ‑ ‑
KIRBY J: So the theory is, because these are statutory offences, therefore, they must have their punishment provided by statute. Where they are provided by statute, they must be individually identified unless there is a specific statutory power that allows aggregation.
MR GRACE: Yes, and it accords, if I may say so, with appropriate application of principles of general deterrence and specific deterrence, because if aggregation of sentencing becomes the norm, then the deterrent effect for individual sentences for crimes becomes almost non‑existent.
GLEESON CJ: You say if it becomes the norm in the Northern Territory, it is the norm by virtue of section 52, norm in the sense that the power exists in all cases.
MR GRACE: Yes.
KIRBY J: But not, you say, in federal offences.
MR GRACE: No.
GLEESON CJ: That is the question. The question is, why do you say that?
MR GRACE: It is inconsistent with the proper application of common law principles, although that is not, of course, a test.
KIRBY J: No, that cannot be the starting point. The starting point must be it is inconsistent with the legislative powers given to the courts of the Northern Territory sentencing for federal offences under federal law, which necessitates federal law.
MR GRACE: Yes. If one goes back to the second reading speech and sees what the intent of Parliament in passing Part 1B was, it was to establish certainty and fairness in the sentencing of federal offenders across Australia.
GLEESON CJ: Before Part 1B was introduced, what were the powers and principles applicable to the sentencing of federal offenders throughout Australia during most of the 20th century?
MR GRACE: Those powers that were found in the Crimes Act, as supplemented by the various powers and procedures contained within State and Territory legislation.
GLEESON CJ: Exactly, before the introduction of Part 1B, section 68 had some very important work to do in picking up State laws in relation to sentencing, did it not?
MR GRACE: Yes, it did.
KIRBY J: But that is a point you try to turn to your advantage and say that Federal Parliament came to regard that as unsatisfactory because it led to differential treatment of federal offenders for the same federal offence in different parts of the Commonwealth and that was regarded as an unsatisfactory differentiation between their treatment for the same offence of the same polity.
MR GRACE: Yes, and Leeth’s Case is a prime example of that situation.
KIRBY J: And that led to what this Court said in Leeth but, more importantly, it led to the introduction of some core provisions in the federal legislation, and that is Part 1B.
MR GRACE: Yes.
KIRBY J: That, as I remember it, was what was the purpose of giving the reference to the Law Reform Commission: to have a standard of core principles that would be applied to federal offenders so it would not depend on the chance factor of whether they committed their offence in Tasmania or in Western Australia.
MR GRACE: Yes, and all the sentencing options that are available to federal offenders we submit are contained within Part 1B, so that where Commonwealth legislation does not provide for such alternatives as community‑based orders, attendance centre orders, training centre orders, and so on, Part 1B allows the picking up of the applicable State or Territory laws to apply to federal offenders. So, whenever there is a gap, the Commonwealth has recognised it either provides specifically for it or it allows the picking up, but it does so within the provisions of Part 1B itself. At page 1603 of the parliamentary debates when the second reading speech of this Bill was made ‑ ‑ ‑
KIRBY J: Do we have that document?
MR GRACE: Yes, your Honours.
KIRBY J: But in this collection?
MR GRACE: Yes, 5 October 1989.
KIRBY J: Which tab?
MR GRACE: Tab 11. In the first column of page 1603, the first substantive paragraph on that page, the Minister on behalf of the Attorney‑General said this:
In late 1988 the final report of the Australian Law Reform Commission on sentencing – ALRC 44 – was tabled in Parliament. It is therefore timely that further and more significant amendments be made. The reform and review of the sentencing legislation to ensure its fairness and effectiveness and to ensure community confidence in the ability of the criminal justice system to deal with offenders are an important part of the Government’s fight against crime, particularly organised crime.
I will not read the rest of that paragraph, but the next paragraph is of most significance:
The Government believes that there is a need for a separate Commonwealth sentencing regime to ensure that Federal offenders are not disadvantaged because of the complex legal problems that may arise in a Federal system. This Bill provides a sentencing regime for Federal offenders which pursues the aims of certainty and fairness.
And then it goes on to discuss specific provisions such as imprisonment being punishment of last resort.
GUMMOW J: When did 4K come in?
MR GRACE: Section 4K came in in 1984.
GUMMOW J: It is outside Part 1B.
MR GRACE: Yes, it is. It came into the Acts Interpretation Act and it came in, we would submit, as a response to the lacuna in Commonwealth legislation that did not allow the joinder of offences to occur in summary proceedings. The reasoning behind that appears in the judgment of Justice Tadgell in Bibaoui [1997] 2 VR 600, which is the Victorian Court of Appeal decision, and if I just take your Honours briefly to that.
KIRBY J: That is tab 3. Is it Justice Tadgell, because he agrees with Justice Ormiston?
MR GRACE: Yes.
GUMMOW J: It is 1996.
KIRBY J: I see, Justice Ormiston gave the first reasons.
MR GRACE: Yes, he did. Justice Tadgell, at the bottom of page 606, the second last line, says this:
Section 4K was added to the Crimes Act 1914 in 1987. Long before that it was, I believe, accepted that two or more counts might be joined in the same indictment preferred in a Victorian court alleging breaches of a Commonwealth law if the offences were founded on the same facts or formed part of a series of offences of the same or similar character. This was so because para. 2 of the Presentment Rules . . . permitted it. Those rules have long been taken to cover indictments alleging Commonwealth offences . . . The conclusion to be drawn from those sections and authorities is that, in Victoria, an indictment duly preferred on behalf of the Crown in right of the Commonwealth is equivalent procedurally to a presentment preferred on behalf of the Crown in right of the State of Victoria. An indictment preferred on behalf of the Crown in right of the Commonwealth in any other State or Territory was and is also equivalent procedurally to any other indictment. There was, therefore, no need for the enactment of s. 4K(3) to cover indictments. There is no occasion, therefore, to treat it as doing so by virtue of any inconvenience which would flow from not doing so. Moreover there is, in my opinion, good reason to treat s. 4K(4) as not extending to indictable offences in the absence of language compelling a contrary conclusion.
KIRBY J: Of course, whether it is on indictment or not in a federal offence is a very important constitutional trigger because it entitles the person who is tried on indictment to a jury as a constitutional right.
MR GRACE: Yes, that is so, your Honour. I went to Bibaoui to answer your Honour Justice Gummow’s question as to when ‑ ‑ ‑
GUMMOW J: The answer is before Part 1B.
MR GRACE: Yes, and in 1987 the section was transplanted from the Acts Interpretation Act, with slight amendment, into the Crimes Act, and it is significant that Part 1B was enacted after that amendment that placed section 4K ‑ ‑ ‑
KIRBY J: What is significant about it?
MR GRACE: It is significant because Parliament must have been taken to have known that there was a power to aggregate sentences contained within Commonwealth legislation, but chose not to include such a provision in the various powers to impose sentence contained within Part 1B.
KIRBY J: What could be the principled reason for doing so, apart from oversight?
MR GRACE: Because of the great convenience in courts of summary jurisdiction in the disposal of matters, particularly in relation to Commonwealth offending such as large numbers of social security offences charged on the one occasion against one individual which might have another offence occurring every fortnight over a course of a year, to allow the facilitation of the disposal of those matters where sentences of imprisonment did not exceed 12 months by the method of aggregate sentencing.
KIRBY J: Why would there not be cases in the federal sphere of indictable crimes where that would also be appropriate? Does it come down, in your submission, to ultimately an oversight, but whether it is an oversight or not it is what the law says and it has to be applied?
MR GRACE: We say there is an absence ‑ ‑ ‑
KIRBY J: I cannot see any principled reason for distinguishing summary indictable offences.
MR GRACE: The principled reason is to be found in the philosophy behind the reasoning in cases such as Pearce, which say that there ought to be one sentence imposed in respect of each offence, and for good reason. One of the reasons is, what happens on appeal if an aggregate sentence is imposed and the whole sentence has to be revisited? Another reason is, how can it act as a deterrent to others?
KIRBY J: Is the point that a possible reasoned principle is that with summary offences you can get hundreds of social security offences and put an aggregation of sensible indictable offences which are going to tend to be more serious and be serious offences, that it is desirable in principle that individual sentences should be identified and imposed?
MR GRACE: Yes.
KIRBY J: And that is Pearce?
MR GRACE: Yes, your Honour.
GLEESON CJ: Mr Grace, I am not saying this should be the case, but has anybody ever disagreed with the conclusion in Bibaoui?
MR GRACE: No, your Honour.
GUMMOW J: But is not what Justice Tadgell saying, if you look at the top of 607, to be understood this way. When he says:
Those rules have long been taken to cover indictments alleging Commonwealth offences –
See that?
MR GRACE: Yes.
GUMMOW J: That, at least in part perhaps, is reflecting the operation of 68. In other words, there was a State procedure to be picked up for indictable offences but there was not one for summary, therefore, the Commonwealth had to make its own provision, which they have done in 4K.
MR GRACE: What it was picking up pursuant to section 68 was the joinder rules, not the sentencing powers. It was picking up the ability to join counts on an indictment or a presentment, and that is provided for in respect of summary proceedings in section 4K(3).
GUMMOW J: But 4K(4) is only there because of the rest of 4K.
MR GRACE: Section 4K(4) appears to be there as a facilitation of dealing with matters that are the subject of 4K(3), that is, summary matters that are joined together, but 4K(4) only operates in relation to offences against the same provision of a law of the Commonwealth, whereas section 52(1) of the Northern Territory legislation and section 18A of the South Australian legislation apply across the board, so that it does not have to be an offence against the same provision of a law of the Commonwealth for an aggregate sentence to be imposed.
The matter is complicated, however, when one looks at other provisions of the Crimes Act – under tab 1, your Honours. If my opponents are correct, there is a completely anomalous result that occurs if aggregate sentencing applies to indictable matters. Perhaps if I go to section 4G first:
Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.
Section 4J provides:
(1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.
(2) Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.
Subsection (3) provides what the maximum penalties are. Subsection (4) again provides a facilitative provision. Subsection (5) provides a maximum penalty that may be imposed, as does subsection (6).
KIRBY J: What is the anomaly?
MR GRACE: The anomaly is this – take this case as an example. If there is a power to impose an aggregate sentence, as their Honours have found in this case – this matter was heard summarily – then there would be the imposition of an aggregate sentence which was not in conformity with section 4K(4) because the offences were not against the same law of the Commonwealth.
GLEESON CJ: I am not sure I have understood that. Are these offences dealt with summarily?
MR GRACE: No, these offences were dealt with on indictment.
GLEESON CJ: Right, but you are saying “if” they were dealt with summarily?
MR GRACE: They were capable of being dealt with summarily, but they were not. If they had been, section 4K(4) would not have applied because the offences were not against the same provision of a law of the Commonwealth.
GUMMOW J: Where do we see that requirement?
MR GRACE: In section 4K(4).
GLEESON CJ: By reference back to (3)?
MR GRACE: Yes.
GLEESON CJ: You say that is anomalous because that demonstrates the obvious, does it not? It demonstrates that the power given by section 52 of the Sentencing Act (NT) is wider than the power given by section 4K.
MR GRACE: Yes, it is much wider.
GLEESON CJ: Exactly, but why would it be anomalous?
MR GRACE: It would be anomalous in circumstances where you had a combination of offences, such as in the case of the appellant. The appellant would not be able to avail himself of the procedure of 4K(4).
GLEESON CJ: But this is just the same argument – I mean, it might be a good argument, but it is your one argument, is it not, and that is that 4K is narrower than section 52 of the Northern Territory Act?
MR GRACE: Yes.
GLEESON CJ: And therefore you say the Commonwealth legislation does not permit section 68 to pick up section 52. We always knew that section 52 was wider than 4K, that is why we are here.
MR GRACE: Yes.
GLEESON CJ: Whichever way you look at it, it comes back to the same point, does it not? You say that the narrowness or specificity, if I could use that expression, of 4K displaces the capacity of section 52 to be picked up by section 68.
MR GRACE: That is one part of our argument, yes, in relation to section 52. There are other aspects of section 52 which we say are incapable of being picked up, therefore, the meaning of section 52 is changed if it is picked up and, therefore, does not accord with the principles enunciated in such cases as Kruger and Solomons in that the picking up would require a different meaning to be placed upon section 52.
GLEESON CJ: I am just not sure that that is an anomaly; it is just another example of the difference between the narrowness of section 4K and the width of section 52.
MR GRACE: Yes, it is, your Honour.
KIRBY J: Obviously, to advance your case you have to put the two one against the other and see does it fit, or is it inconsistent, so that that suggests that the specific legislation has to take priority and has to be applied. So I think you are going through what you say are the indicia of incompatibility, which lead ultimately to a submission of implied repeal of the general provisions of the Judiciary Act insofar as you are dealing with the particular issue of sentencing federal offenders ‑ ‑ ‑
MR GRACE: Yes, your Honour.
KIRBY J: ‑ ‑ ‑ in fulfilment of the Federal Parliament’s general decision on certain core matters to have a single regime apply throughout the nation for people who are convicted of federal offences. It is not an unreasonable core principle.
MR GRACE: Yes, your Honour.
GUMMOW J: Have you looked at Gee in your submissions?
MR GRACE: Yes, I have, your Honour.
GUMMOW J: At paragraph [24] of Gee there is a discussion and reference to 39 of the Judiciary Act but translated to 68 as to the rather special status of provisions like 39 and 68 and their ambulatory operation. What I have difficulty with – and I do not quite know the answer – is how you measure that ambulatory operation which the Court said is given those provisions with doctrines of effective collision leading to an implied repeal. The doctrine of implied repeal is supposed to be a difficult one to apply, is it not? You have to find actual opposition.
MR GRACE: Yes, your Honour.
GUMMOW J: And I do not know how it all fits together at the moment.
MR GRACE: The answer may be in the ambulatory operation one is talking primarily of procedures, and I seek to make the distinction between the picking up of powers and the picking up of procedures. What your Honours were talking about in Gee, adopting as I perceive the comments of Justice Dixon as he then was in Williams (No 2), was more to do with the adoption of procedures rather than the adoption of powers.
GUMMOW J: There is also the factor that when those cases were decided these sections only referred to the States. They did not refer to the Territory until 1976. That is right, is it not? The Territory laws are not quite the same as State laws. They ultimately have the same root as the federal law.
MR GRACE: Yes, although under Part 1B a State includes the Australian Capital Territory and the Northern Territory. That is in the definition.
GUMMOW J: That is just a drafting horror. Territory does not include the Australian Capital Territory or the Northern Territory, you will see in section 16.
MR GRACE: Yes. The first of the external ‑ ‑ ‑
GUMMOW J: It is designed to put external territories in some special position, is it not?
MR GRACE: Yes.
KIRBY J: Well, that is because of their lack of self‑government.
GUMMOW J: Yes.
MR GRACE: The other point, in answer to your Honour Justice Gummow’s question, is this. The cases that are primarily relied upon by my opponents to evidence the picking up of State sentencing powers by courts exercising federal jurisdiction are cases that predate Part 1B coming into operation. This Court has never considered how section 68(1) would pick up a State sentencing power which either was not mentioned or could be implied in Part 1B.
KIRBY J: I think three members of the Court – Justice Deane, Justice Toohey and Justice Gaudron – took the view that the Constitution itself required equal treatment of federal offenders.
MR GRACE: Yes.
KIRBY J: But they were in a minority. That was Leeth.
MR GRACE: That was in Leeth.
KIRBY J: Was Leeth before the amendments of the legislation that introduced Part 1B?
MR GRACE: Leeth was decided in 1992. Part 1B came into operation before. However, the case in Leeth commenced prior to that coming into operation. So that what Leeth was considering was the operation of the Commonwealth Prisoners Act as it applied to the minimum terms fixed for federal offenders in the various States and Territories.
KIRBY J: But the legislation was part of a general federal concern at about that time ‑ ‑ ‑
MR GRACE: Yes.
KIRBY J: ‑ ‑ ‑ late 1980s, early 1990s, concerning the differential treatment of federal offenders in different parts of the Commonwealth.
MR GRACE: Yes. In Gee at paragraph [109] your Honour Justice Kirby made some comments which are perhaps apposite to the discussion we have just been having.
KIRBY J: What is the citation? (2003) 196 ALR 282.
MR GRACE: Yes, that is correct, at 282.
KIRBY J: It is also in the Australian Law Journal Reports.
MR GRACE: Yes, your Honour, it is.
KIRBY J: However, press on.
MR GRACE: At paragraph [109] - and your Honours will recall Gee looked at whether the procedure in the South Australian legislation which allowed certain questions of law to be determined by the Court of Appeal were applicable to Commonwealth matters. At paragraph [109] your Honour says this:
The respondents pointed out that the statutory procedure for the reservation and determination of questions by the Full Court under the State Act, in respect of the determination of questions before the jury were empanelled, was unique to South Australia. They invoked the reasons of Barwick CJ dissenting in Peel v R, in a passage referred to with apparent approval in the joint reasons in Byrnes v R. In Peel, Barwick CJ had taken a strict view of the words in s 68(2) of the [Judiciary Act]. He concluded that “neither an appeal against acquittal nor an appeal against sentence is an appeal arising out of any proceedings connected with the trial: nor is an appeal against sentence an appeal arising out of any proceedings connected with the conviction”. The strictness of Barwick CJ’s view was based, in part, upon his understanding of the language of s 68(2). But it was also based on the mischief that his Honour saw to the uniform treatment of persons accused of federal offences, regardless of where the trial took place in Australia. Barwick CJ instanced the then unique provisions of Tasmanian law permitting prosecution appeals against certain acquittals. He suggested that this provided an argument against the adoption of a broad view of the language of s 68(2). Such an interpretation would lead to the introduction into federal jurisdiction, through an indirect means, of radical departures from normal criminal procedure.
We say that those comments by your Honour are apposite to the adoption in the Commonwealth area, Commonwealth arena, of the power to aggregate sentences.
GLEESON CJ: Mr Grace, the most obvious example of special sentencing regimes that might differ from State to State that I can think of relates to juveniles. How does the Commonwealth legislation deal with that? Federal offences committed by juveniles who, in different jurisdictions, are often singled out for very special treatment.
MR GRACE: I will take your Honours to the relevant - that is one of the areas that is covered by the various picking up of State and Territory provisions, and I will just ‑ ‑ ‑
GLEESON CJ: You do not need to answer the question now, if you want to look at it over the adjournment. I am just interested to be informed on how the federal law deals with juvenile offenders.
MR GRACE: Section 20AB(1).
GLEESON CJ: Of the Crimes Act?
MR GRACE: Yes.
GUMMOW J: Yes, that turns on these definitions of “participating States”, does it not, and “participating Territories”?
MR GRACE: Yes.
GUMMOW J: Which is found ‑ ‑ ‑
MR GRACE: And in section 20C also there is a provision.
KIRBY J: We do not seem to have 28B in this compilation.
GLEESON CJ: Section 20AB.
KIRBY J: Section 20AB? I am sorry, I thought you said 28.
MR GRACE: Section 20AB(1), which would pick up various orders such as youth attendance centre orders, but 20C ‑ ‑ ‑
GLEESON CJ: Yes. The way they deal with it is to say you deal with the young person as though the young person was being dealt with only for an offence against the law of the State.
MR GRACE: Yes.
GLEESON CJ: How does that fit into this scheme of having uniform treatment throughout Australia of offenders against federal laws?
KIRBY J: It is a specific exception.
MR GRACE: Yes, it is an exception. It must be an exception.
KIRBY J: It is particular and specific and permitted by the federal legislature.
MR GRACE: Again, it is not a question of picking up pursuant to section 68(1).
GUMMOW J: Where do we find these definitions of “participating State”, “participating Territory”? It is a point that may help you, I would have thought.
MR GRACE: It perhaps is reference to what is referred to in section 3B.
GUMMOW J: Yes, that is it.
MR GRACE: And section 3B(2) provides ‑ ‑ ‑
GUMMOW J: We all have that. Section 3B(2)?
MR GRACE: Section 3B(2)(a).
GUMMOW J: Yes, thank you. So, in other words, the States and the Territories are not conscripted; they have to cooperate.
MR GRACE: Yes.
KIRBY J: That is presumably on the constitutional foundation that the Commonwealth can conscript their courts but not their executive governments ‑ ‑ ‑
MR GRACE: That is correct.
GUMMOW J: Yes, exactly.
MR GRACE: But all States and Territories are participating.
KIRBY J: There is a specific provision in the Constitution about receiving federal prisoners in State prisons.
MR GRACE: Section 120 I believe.
KIRBY J: That is right, yes. But that is about it.
MR GRACE: Now, I wanted to take your Honours through Part 1B and identify those provisions which we submit give support to the proposition that what Part 1B contemplates is that separate sentences be imposed for each offence. In so doing, I also of course rely upon the common law principles enunciated in cases such as Pearce.
KIRBY J: Is there any specific statement in Pearce or in any other decision, earlier decision, English decision, to the effect that there is no power to aggregate?
MR GRACE: No, there is not, not as far as I am aware. I am reminded by my learned junior that there is possibly in the judgment of Lord Chancellor Lord Selborne in Castro’s Case (1881) 6 App Cas 229. At the bottom of page 237 his Lordship says:
I pause to observe, that, in a case like the present, where the statutory power is to imprison for a term not exceeding seven years, if two simultaneous sentences were passed, both for the maximum period, and both commencing at the same time, it would be manifest that for the second offence there would be no punishment at all. “We cannot” (said the Chief Justice), “explore any mode of sentencing a man to imprisonment who is imprisoned already, but by tacking one imprisonment to the other, as is done in the present case.”
And that goes on to what we discussed yesterday, your Honours will recall, in the case of Longford from New South Wales. But other than that and some references later to the proper course as to pronounce a second sentence of imprisonment in all such cases, then there is no reference in Australian cases, or in other English cases, that I can discern that would relate to a power to aggregate, or give support to a power to aggregate at common law.
In section 16 of the Crimes Act there is a definition of “aggregate”, but that is in a completely different sense to what is being discussed in this appeal. The word “aggregate” in section 16 refers to:
2 or more sentences or terms of imprisonment . . . the total effective sentence or term of imprisonment imposed ‑
and there are examples set out in the definitional section which make that clear.
KIRBY J: So it is a noun, not a verb.
MR GRACE: Yes. Of significance also in subsection 16(1) is the definition of “federal offence”. Why I want to focus on that is because there is a suggestion that because of various provisions in the Acts Interpretation Act which allow for the plural of a noun such as “offence” to be applied, if the context so allows, there is a clear distinction, we would submit, in the provisions of Part 1B which clearly differentiate between the word “offence” and the word “offences”:
federal offence means an offence against the law of the Commonwealth.
federal offender means a person convicted of a federal offence.
federal sentence means a sentence imposed for a federal offence.
Those definitions, we would submit, lend support to our primary submission. The learned Solicitor reminds me of section 16(2) which provides:
In this Part, expressions in the plural do not imply that expressions in the singular do not include the plural.
But there is no reverse of that particular statement. In section 16A(1) the Act talks about:
In determining the sentence to be passed . . . in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
And in subsection (3) provides:
Without limiting the generality of subsections (1) and (2) in determining whether a sentence or order under . . . is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions ‑
and so on. In section 16B reference to “a federal offence”, and in subsection (a):
a court must have regard to:
(a) any sentence already imposed on the person by the court or another court for any other federal offence ‑
Section 16BA, there is distinction made between “federal offence” or “federal offences”:
(1) Where a person is convicted of a federal offence or federal offences and the court before which the person is convicted is satisfied ‑
and various matters – allow certain matters to be taken into account.
KIRBY J: Where is that, I am sorry? I was distracted.
MR GRACE: In section 16BA.
KIRBY J: Thank you.
MR GRACE: In section 16C – this is in relation to fines, not in relation to imprisonment at all – there is a reference to “a federal offence”. Section 16D, dealing with corporal punishment, again deals with “a federal offence”. Then section 16E(2) refers to single offences. Section 16F provides:
(1) Where a court imposes a federal sentence on a person and fixes a non-parole period in respect of the sentence ‑
various matters must be explained. Again, subsection (2) speaks of “a federal sentence” in the singular. Section 16G has now been repealed. Section 17A again provides a legislative prescription that a sentence of imprisonment “for a federal offence” ‑ ‑ ‑
KIRBY J: Was section 16G repealed for reasons of sentencing policy or because the States had removed remissions?
MR GRACE: At the date of repeal only one State still had remissions, and that was Western Australia, but as of I think late August of this year Western Australia has now repealed the provisions that related to remissions. So all States and Territories in Australia no longer have remissions, except I think perhaps Tasmania, which provides for a small amount of remissions of the sentence of three months.
GUMMOW J: Now, Mr Grace, can we go back to the Judiciary Act. We really have to grapple with this. Can you look at section 79? My difficulty arises in comparison between 68 and 79. Section 79 says, you will see:
except as otherwise provided by . . . the laws of the Commonwealth –
If this were purely a 79 case you would say it is all provided in Part 1B”.
MR GRACE: Yes.
GUMMOW J: But those words do not appear in 68. Now, is there any reason for that, any discussion of that discrepancy in the cases?
MR GRACE: It does not appear to be so, but we agree with ‑ ‑ ‑
GUMMOW J: Well, I think it should be checked. Secondly, is there any reason why 79 is supplanted by 68? In other words, does Part 10, dealing with criminal jurisdiction, exhaust what would otherwise be any scope for Part 11, which is supplementary provisions, which includes 79? Do you see what I mean?
MR GRACE: Yes, I do, but there is an argument as to whether section 79 applies at all to ‑ ‑ ‑
GUMMOW J: Yes, that is what I am worried about.
MR GRACE: Yes.
GUMMOW J: If it does, how do you then sort out the rather different drafting, one with the elasticity that the other does not seem to have?
MR GRACE: Yes. Well, we join with the learned Solicitor who says at paragraph 8 in his submissions that:
while s 68 . . . does not expressly preclude picking up State and Territory laws when the Constitution or other Commonwealth laws “otherwise provide”, those requirements are implicit in s 68.
And he relies upon the decision in this Court in Brown’s Case, particularly the judgment of Justice Deane in Brown’s Case.
GUMMOW J: What is the citation of that?
MR GRACE: (1986) 160 CLR 171.
GUMMOW J: Thank you.
KIRBY J: It is a bit like the provision in section 51 of the Constitution, that is subject to the Constitution. I mean, if those words had not been there, it would still be subject to the Constitution. So it really makes it explicit.
MR GRACE: Yes. I have Brown’s Case. I am not sure if your Honours have it.
GUMMOW J: We do not have it at the moment, I do not think.
MR GRACE: I thought it was on the Commonwealth’s list of authorities or, indeed, in the body of the materials, but perhaps not.
GUMMOW J: Anyhow, we can come back to it, but it seems to be an important point, really, perhaps.
MR GRACE: Yes. The other point that is lurking in the background is whether section 79 applies to the Northern Territory at all.
GUMMOW J: That says “the laws of each state or territory” and territory is defined in section 3A as extending “to all the Territories”. So I think it stopped to lurk in 1976.
MR GRACE: The question is, I suppose, whether the Northern Territory court was exercising or is a court exercising federal jurisdiction or ‑ ‑ ‑
GUMMOW J: That is settled by GPAO. That is down the road now. No one disputes that any more, as I understand it.
MR GRACE: I note the arguments that were recently put before this Court in NALAS v Bradley where there was ‑ ‑ ‑
GUMMOW J: They did not dispute that. In particular, the Northern Territory embraces it.
MR GRACE: Yes, and, of course, the Northern Territory wants its courts to be federal courts, as I understand it.
KIRBY J: I am not sure about that.
GUMMOW J: I am not sure about that.
KIRBY J: Some of us want them to be federal courts, but I am not sure that the learned Solicitor for the Northern Territory ‑ ‑ ‑
GUMMOW J: That is a next step. The question that is settled is that they can exercise federal jurisdiction, as they do in thousands of cases, every day, day after day.
MR GRACE: But, in any event, we say there is no difference in operation between section 68 and section 79 because Part 1B evinces a contrary law, but otherwise provides ‑ ‑ ‑
KIRBY J: You were going through Part 1B to establish this as a ‑ ‑ ‑
MR GRACE: Yes.
KIRBY J: Are these inconsistencies all listed in your written submissions?
MR GRACE: Yes. At paragraph 5.50 I list a number of sections but it is not a complete summary of it all, but they are readily apparent.
GUMMOW J: Yes. We can read all that.
KIRBY J: …..Is that not something that can be put on a piece of paper rather than us, like schoolboys, taking a note of them all?
MR GRACE: Yes, it can, your Honour. The point I made earlier I want to emphasise, and that is there is no conceivable sentencing disposition that is not referred to in Part 1B and where there is no specific provision made in Part 1B for the sentencing of a federal offender then the court specifically, by direction, allows the sentencing court to pick up State or Territory laws.
KIRBY J: Where it is intended, that it has singled them out and expressly provided for it.
MR GRACE: Yes.
GUMMOW J: That then comes down to the phrase “except as otherwise provided by . . . the laws of the Commonwealth” and you say all this is otherwise provided within the meaning of 79 as transposed to 68?
MR GRACE: Yes.
GUMMOW J: Are there any cases on when a particular Commonwealth regime has been treated as otherwise providing so that there was no operation for 69? That had better be looked at, I think.
MR GRACE: The Moorebank Case, as I understand it, your Honour.
GUMMOW J: Yes. There is no need to do it now but it seems to me that that is where we have to be at. Because it is those words of elasticity which skirt around the doctrine of implied repeal.
MR GRACE: Yes.
KIRBY J: Covering the field is a real red herring. It is an “otherwise providing” case, this is, within the four corners of the federal law or an inconsistency case.
MR GRACE: Yes. It is actually repugnancy, I suppose, because it is a Territory. What my opponents are saying, there is a lacuna in the Commonwealth legislation that allows this power of aggregate sentencing to be picked up. We say in response to that there is no lacuna.
KIRBY J: Why would we struggle to find a lacuna when the Federal Parliament has gone to all this trouble to try and pursue an important federal policy?
MR GRACE: Yes, and the indications of there not being a lacuna are to be found in that review I have just done of going through the sections and pointing out that there is no reference at all to aggregate sentencing and there are specific indications that separate sentences ought to be imposed for each offence, together with the fact that Part 1B was enacted after section 4K(4). So the Commonwealth was aware of the existence of that power in relation to summary proceedings.
GUMMOW J: Where is this passage of Justice Deane in Brown v The Queen? Could you just give me the page? You do not need to read it. It is 160 CLR 171.
MR GRACE: At 206, your Honour.
GUMMOW J: Page 206, thank you. I do not think it quite says what you say, anyhow.
MR GRACE: It is about the middle of the page.
KIRBY J: We do not have that. I do not have it, so if you are relying on it, you will either have to read it or provide it.
MR GRACE: Yes.
GUMMOW J: Now, “so far as they are applicable” is not quite the same idea. That is picking it up changed or unchanged. You have a point about that. That appears in 68(1) and in 79 but “so far as they are applicable” does not appear in 68(2) and the expression “except as otherwise provided” does not appear anywhere in 68.
MR GRACE: No, it does not.
KIRBY J: Have you the citation for Moorbank or are you going to take us to Moorbank?
GUMMOW J: Did we have to look at this in Solomons as well?
MR GRACE: Moorbank I think was referred to either in Solomons or in Gee.
GUMMOW J: …..in the tobacco case we heard recently. Anyhow, do not take up time now, Mr Grace, we have to get on.
MR GRACE: Yes, I will find it, your Honour, and perhaps deal with it in the reply. Your Honours, I wanted to go back to section 52(1), if I may, just briefly. It is a point I touched on earlier, and that is whether section ‑ ‑ ‑
GLEESON CJ: What tab is that?
MR GRACE: At tab 2. Section 52 of the Northern Territory Act – whether, in any event, section 52 was capable of being picked up. Now, at once one will see that the reference to information and complaint is not capable of being picked up because that is already provided for in Commonwealth legislation, section 4K(4), because information and complaint in the Northern Territory only relate to summary proceedings. Subsection (2) cannot be picked up and subsection (3), arguably, cannot be picked up.
KIRBY J: Why cannot 52(2) be picked up?
MR GRACE: Because it is specific reference to the Criminal Code (NT).
KIRBY J: I see. So that is not relevant to federal sentencing?
MR GRACE: No.
KIRBY J: Yes, and 52(3)?
MR GRACE: It provides:
Subsection (1) does not apply if one of the offences in the information, complaint or indictment is a violent offence or a sexual offence.
KIRBY J: That is, again, a Territory offence under the Code.
MR GRACE: Yes. So, if section 52 can be picked up, it must be picked up in a piecemeal fashion. That changes, we would say, its meaning. It gives an altered meaning to the Territory legislation and it offends against the principle of picking up State legislation as you find it and would give a different operation to that section if applied in the Commonwealth sphere.
GUMMOW J: It will always have a different operation. It is a slightly slippery concept, picking it up with its meaning unchanged. The whole operation of section 79 is to translate it into another sphere and it could not otherwise apply.
MR GRACE: Yes, but it is incapable of operation in another sphere, unless in an altered state. That is the situation discussed in Solomons, just generally, and specifically in Solomons at paragraph [24]. There is a more important issue concerning that perhaps, and that is what are the principles that inform the court as to when to impose an aggregate sentence? Does the picking up of section 52 also require the picking up of section 5 of the Northern Territory Act, which provides sentencing principles and guidelines for the sentencing of Territory offenders. What principles would inform the sentencer in the Commonwealth jurisdiction as to whether to impose an aggregate sentence or not?
So we submit that the picking up of section 52 also requires the picking up a body of local sentencing principles and guidelines which varies, even upon a cursory look, between those principles or matters to be taken into account enunciated in section 16A(2).
KIRBY J: In what way? What are the sort of principles in the Northern Territory Act that would be inconsistent with the federal Act?
MR GRACE: Could your Honours go to the beginning of tab 2 ‑ ‑ ‑
KIRBY J: This is section 5 of the Northern Territory Act.
MR GRACE: Section 5 of the Northern Territory legislation.
KIRBY J: Do not go through them all, but what are the most clear inconsistencies between their general principles and the federal principles?
MR GRACE: A prime example would be that in the Territory there are six purposes which are specified, or five substantive purposes that are specified, for which sentences may be imposed.
GUMMOW J: This is general principles, the general principles in Part 2, sections 5 and 6 of the Northern Territory Act?
MR GRACE: Yes.
GUMMOW J: All right.
MR GRACE: Just to give your Honours an example of the difference:
to provide conditions in the court’s order that will help the offender to be rehabilitated –
which is (1)(b). That does not appear, for instance, in section 16A. What appears in section 16A(2) is the rehabilitation prospects of that individual. There is certainly no guidance given to the Court in the Commonwealth sphere as to what the purposes of sentences are to be. The checklist of matters that are contained in section 5(2) differ to that contained in section 16A(2).
GLEESON CJ: What are the principles according to which aggregate sentences are imposed if they are imposed under section 4K(4)?
MR GRACE: There are none that I am aware of that have been ever articulated, other than some convenience to the court or to the offender or to various prison authorities that may result in the aggregate sentence being imposed.
KIRBY J: If you do not have them specified for summary offences, why should you have to expect them to be specified for indictable offences?
MR GRACE: Why? Because a court must explain to an individual under section 16F why a particular sentence has been imposed. If no guidance is given to a sentencing court under Commonwealth law, what is a sentencer to tell an offender?
KIRBY J: Presumably much the same as the sentencer is to tell them about general deterrence.
MR GRACE: That is why what has occurred is a practice in South Australia has developed where an aggregate sentence is imposed pursuant to section 18A, the court advises the offender as to what the individual sentences would be for each offence and then imposes an aggregate which, with respect to that practice, simply defeats the purpose, in our submission.
The case of Major (1998) 100 A Crim R 66 which is referred to in our submissions and list of authorities refers to that particular practice. The same approach has now been followed in the Northern Territory in a case of Bishop, and I could hand your Honours a copy of that case. In Major at page 67 ‑ ‑ ‑
GUMMOW J: What is all this going to?
MR GRACE: It is going to what we would submit is the undesirability, the inappropriateness, if not absurdity, of imposing an aggregate sentence when all one is doing is meeting some undefined convenience factor which may be illusory. At page 67 Chief Justice Doyle says about halfway down the page:
I agree with Olsson J that if a single sentence is imposed, using s 18A . . . the judge must first ‑ ‑ ‑
GUMMOW J: But the hypothesis is that it was in power to do it in this case now, is it? Is that the hypothesis, that the section did apply in this case, but that it miscarried for some reason?
MR GRACE: In Major’s Case or in the appellant’s case?
GUMMOW J: No, in this particular case, the appeal we have.
MR GRACE: No, your Honour, I am not conceding that at all, but I am pointing out that how this method of imposing an aggregate sentence – this is in answer to the question as to what principles would inform a court as to aggregate sentencing ‑ but in South Australia and now the Northern Territory what has developed is this practice, that:
the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentence imposed would be concurrent or cumulative.
If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.
In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.
So one would postulate, why would a court go through that exercise and then impose an aggregate sentence when it could easily impose individual sentences for each particular offence and make orders for cumulation or concurrence, as appropriate?
GLEESON CJ: Mr Major was something of a challenge.
MR GRACE: Yes.
GLEESON CJ: In this appeal we are not concerned with anything other than the question of the power to impose an aggregate sentence, are we?
MR GRACE: No. In addition, going back to the issue of whether part of section 52 of the Sentencing Act (NT) could be picked up, I also wanted to refer the Court to what was said in Kruger (1997) 190 CLR 1 at 140. There Justice Gaudron said at point 7 on the page:
There may be statutory provisions couched in terms which make it impossible for them to be “picked up” by s 79 of the Judiciary Act. Similarly, there may be provisions which impose functions which are beyond the reach of s 79.
And we say that section 52, if it can be picked up, suffers from that fatal problem. Can I refer your Honours now to Moorebank’s Case (1988) 165 CLR 55, which I have now located.
KIRBY J: At which page?
MR GRACE: At page 64, your Honour. That was dealing with the question of whether the Limitation of Actions Act (Qld), which prescribed a limitation period of a certain number of years, applied in the Commonwealth sphere. At page 64 their Honours Chief Justice Mason and Justices Brennan, Deane, Dawson and Gaudron said this:
In particular, where a Commonwealth legislative scheme is complete upon its face, s. 64 will not operate to insert into it some provision of State law for whose operation the Commonwealth provisions can, when properly understood, be seen to have left no room. Accordingly, the question arises whether the relevant provisions of the Assessment Act have effectively covered the field and left no room for the direct or indirect intrusion of provisions of State Limitation Acts to limit the time in which an action can be brought on behalf of the Commissioner of Taxation for unpaid income tax or additional tax. It can be said at once that the provisions of the Assessment Act dealing with liability for and recovery of additional tax are so dependent upon and interwoven with the provisions dealing with liability for and recovery of income tax that it is plain that there will be no room for the application of State limitation provisions to limit recovery of additional tax if there is no room for the application of such provisions in relation to the recovery of income tax.
Now, we say that when you look at Part 1B as a whole and in its context and if one accepts that the regime created by Parliament had as its intention to create consistency across Australia of certainty, certainly certainty and fairness, in the treatment of federal offenders, then that particular regime evinces an intention that it provides completely for the source of sentencing powers for Commonwealth offenders and where it does not provide the procedures for that sentencing it so decrees. It says you go to the State or Territory laws to apply.
Paragraph [61] in Gee, your Honour Justice Gummow together with Justice McHugh said:
In construing the provisions of the Judiciary Act as it now stands, effect no longer should be given to those statements in Seaegg. This is so for several reasons. First, s 68(2) itself has been significantly amended by the 1932 amendment thereby bringing it into a changed relationship with ss 72-77. Secondly, within the one statute, its various provisions, if it be possible, are to be given “a construction that will render them harmonious”. That was how Gibbs J put the matter in Ross v R in considering provisions of the Criminal Code (Qld). That attainment of harmony is not to be achieved by the adoption of notions respecting inconsistency between the several statutes of the one legislature or respecting amendment and repeal.
[62] Thirdly, some useful analogy is provided by the reasoning in cases such as Deputy Commissioner of Taxation v Moorebank Pty Ltd. Provisions such as ss 64, 68(2) and 79 of the Judiciary Act do not operate to insert a provision of state law into a Commonwealth legislative scheme which is “complete upon its face” where, on their proper construction, those federal provisions can “be seen to have left no room” for the picking up of state law.
We say that is exactly what Part 1B does. Now, sure there is an anomaly in that the Commonwealth Parliament has not provided in terms in Part 1B as to how to apply the principles that would inform a court, or what the principles would be to inform a court as to when to impose an aggregate sentence pursuant to section 4K(4), but that exception aside, which we would submit is an oversight on the part of the legislature, Part 1B evinces an intention to be a complete regime for the sentencing of Commonwealth offenders.
Now, your Honours, I have not so far gone into the constitutional issue, but I want to briefly do that and say this, that the notion of equal justice is a phrase that has oft been mentioned in this Court. For instance, Justice Mason as he then was in Lowe commenced his judgment – that was the case dealing with disparity of sentencing – with the phrase that a notion of equal justice is a thread that runs through the criminal law.
GUMMOW J: Do you seek leave to reopen Leeth?
MR GRACE: No, I do not seek leave to reopen Leeth, but I say that what our submissions are, are consistent with the application of what Justice Brennan had to say in Leeth 174 CLR 455 at 476.
KIRBY J: Justice Brennan was part of the majority in Leeth?
MR GRACE: Yes, he was. In talking about the sentencing discretion to be exercised under the Customs Act, his Honour said at about the seventh line down from the top of page 476:
Perhaps it should be added that the sentencing discretion to be exercised under those and other laws of general application need not lead to the imposition of uniform sentences in all parts of Australia. It is of the nature of the judicial power to sentence that its exercise is governed by the circumstances of each case unless statute eliminates the sentencing discretion. The exercise of the sentencing discretion is affected by the particular factors relevant to the instant case and the instant offender. Those factors may vary from locality to locality; for example, an offence may be prevalent in one locality and rare in another, and sentences in those localities for offences of the same kind and seriousness may properly reflect those factors. The sentencing principles are uniform, but their application may require weight to be given to local factors. Where there are no local factors to be taken into account, a broad consistency is to be expected in the sentences imposed for like conduct committed in breach of the same law.
We submit that it would be impossible for broad consistency in sentences for like conduct to be imposed where aggregate sentencing is imposed in one jurisdiction in Australia and not in others.
KIRBY J: Is that because of the different terms of the State and Territory aggregation principles or something else?
MR GRACE: That is because in two jurisdictions in Australia there is a power to aggregate sentence. There are two jurisdictions ‑ ‑ ‑
KIRBY J: Only two?
MR GRACE: There are only two: the Northern Territory and South Australia – sorry, and possibly the Australian Capital Territory.
KIRBY J: Well, we had better get this clear whether it exists ‑ ‑ ‑
MR GRACE: For the purposes of the argument, we accept that the Australian Capital Territory, Northern Territory and South Australia. Tasmania had a power but, as I understand it, that power has now been repealed. I am told by the instructor for my opponent that it was taken out of the Criminal Code and put into the Sentencing Act, but that is a matter that I will check and inform the Court, but I understood it had been repealed.
KIRBY J: You say it does not exist in New South Wales, Victoria and Queensland?
MR GRACE: No, nor in Western Australia.
KIRBY J: There was a question hovering in the background of this case in the special leave application and the bail application that preceded it as to whether in the end the sentence that was imposed, if correct principles were applied, omitting aggregation, would not be the same. Is that something we have to consider in any way or not?
MR GRACE: I would submit your Honours do not have to consider that. There either was power or jurisdiction to impose the aggregate sentencing or there was not.
KIRBY J: You say if it was not it has to be done properly according to law and that would just take its own course.
MR GRACE: Yes.
GLEESON CJ: Yes.
MR GRACE: Of course, your Honours will recall that in Lim’s Case 176 CLR 1 ‑ ‑ ‑
GUMMOW J: But what is the constitutional submission? Apart from reading out of cases, what is the proposition?
MR GRACE: That consistent with the exercise or the nature of judicial power, consistent with the character of judicial power, is the dispensation of equal justice.
KIRBY J: In respect of sentencing under the law of the single polity?
MR GRACE: Yes. This notion of equal justice ‑ ‑ ‑
GUMMOW J: Look, that is all ethereal. It is some restraint on legislative power, is it not?
MR GRACE: Well, it goes further than that. It goes ‑ ‑ ‑
GUMMOW J: To win your case, what do you have to show? Do you have to show some partial invalidity, do you, of 68, so that it cannot pick up this provision? Is that what we are talking about?
MR GRACE: Or I have to show that it would be inconsistent with the essential character of the exercise of judicial power to pick up a provision which would result in the notion of equal justice.
GLEESON CJ: So this is a question of construction of section 68, is it?
GUMMOW J: Or is it a question of the power to enact it?
MR GRACE: No, it is nothing to do with power to enact section 68. It is to do with whether a surrogate federal law, which section 62 would become if either section 68 or section 79 picked up section 52 of the Northern Territory Act, was properly applicable in the exercise of federal judicial power.
GLEESON CJ: But where does the principle bite? Does it mean that we should construe section 68 in a certain manner, which will lead to the result for which you contend? Should we say that section 68 is invalid to a certain extent?
MR GRACE: No. We should say that section 68 excludes laws of the Commonwealth, including the Constitution, which would otherwise apply.
GLEESON CJ: As a matter of construction?
MR GRACE: Yes.
GLEESON CJ: So this is a point of construction of section 68?
MR GRACE: Yes. We say section 68(1) cannot pick up a Northern Territory law which in its application would have the result that we say offends the essential nature and character of exercise of judicial power.
GLEESON CJ: Section 68, on its true construction, does not pick up a Northern Territory law in circumstances where to do so would offend the principle that you are relying on.
MR GRACE: Yes.
KIRBY J: Does Lim give any support to that proposition?
MR GRACE: Well, other than a general sense, to say that, at page 27:
to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power –
would be inconsistent with the Constitution. I rely upon, as I indicated earlier, the statements in Lowe, in Postiglione at page 301 in the judgment of Justices Dawson and Gaudron.
KIRBY J: What page in Postiglione?
MR GRACE: Page 301, where Justices Dawson and Gaudron, fifth line from the bottom, talk about “equal justice” recognised by the High Court decision in Lowe. Your Honour, in the same case at page 335 to 336 ‑ ‑ ‑
KIRBY J: Which Honour, myself?
MR GRACE: Sorry, your Honour Justice Kirby. At page 335 at the bottom of that page says:
Consistency in punishment is “a reflection of the notion of equal justice”. It is an attribute of “any rational and fair system of criminal justice”.
And so on. This is in reference to Part 1B of the Crimes Act (Cth).
In Cameron (2002) 209 CLR 399, most recently in this Court, at paragraph 15 your Honours Justice Gummow and Justice Callinan together with Justice Gaudron said:
This treatment of the matter is consistent with what in their joint judgment in Castlemaine Tooheys Ltd v South Australia Gaudron and McHugh JJ identified as the general considerations which result in particular treatment being treated as discriminatory. One aspect of the legal notion of discrimination “lies in the unequal treatment of equals”. The “equals” here are those required to plead guilty or not guilty; they stand as equals before the criminal law and processes of Western Australia. But is the differential treatment of such persons and the unequal outcome with respect to sentence the product of a distinction which is appropriate and adapted to the attainment of a proper objective, here the facilitation of the course of justice by the willingness of the accused to plead in a particular fashion? The answer, as indicated above, is in the affirmative.
KIRBY J: That ghastly phrase “appropriate and adapted” is the language of the liberty of legislation. It is not the language of a principle of construction so as not to breach the Constitution.
MR GRACE: Yes, it is, but the ‑ ‑ ‑
GUMMOW J: There was no constitutional question in Cameron, was there?
MR GRACE: There was one that was certainly floated by ‑ ‑ ‑
GUMMOW J: Discovered for the first time in this Court for the crime took place in a Commonwealth place.
MR GRACE: Yes, there was. In the judgment of Justice McHugh, he raised a possible constitutional issue.
KIRBY J: His Honour reserved the question. However, that is a small matter. I think you have made the point.
MR GRACE: And again, in Cameron, Justice McHugh refers with approval to what your Honour Justice Gummow, together with Justices Gaudron and Hayne, pointed out in Wong:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.
Those are the matters, your Honours.
GLEESON CJ: Yes, thank you. Yes, Mr Solicitor.
MR BENNETT: If the Court pleases. Your Honours, the division which has been agreed between myself and the learned Director is that I will deal with section 68, in particular whether it covers sentencing and the test for where the Commonwealth legislation otherwise provides. I will also deal with the discrimination issue. My learned friend the Director will generally deal with section 8K, whether it is confined to summary offences and whether it in any way gives rise to the inconsistency of the relevant time.
Might I before I commence deal with a couple of minor matters. Would your Honours please correct one footnote in our submissions. In footnote 13, to which I will come shortly after the luncheon adjournment, would your Honours in the last line between the words “will” and “lead” insert the word “usually”. The proposition there is expressed in too absolute a form.
KIRBY J: Do you know where this expression “surrogate law” comes from? It is often used. What is the origin of that in the 68 context, do you know?
MR BENNETT: It has certainly been used in relation to 68, 70 and 79.
GUMMOW J: I think it was first used by Justice Murphy actually. I may be wrong.
MR BENNETT: I am not sure when it was first used. In one of the cases under section 64, I think Justice Murphy used it, your Honour, but I am not sure. The other matter is that although we have agreed on this division, there is one matter in my learned friend the Director’s submissions which we do not adopt. It is a minor matter. It is only a comment in passing, but in paragraph 5.19 of the learned Director’s submissions the last sentence contains a summary in relation to section 80 of the Constitution which we would not accept.
GLEESON CJ: Paragraph 5.19?
MR BENNETT: Yes, of the Director’s submissions.
KIRBY J: I am very glad to see the Director embracing the view that I have expressed in dissent in respect of section 80.
MR BENNETT: It is not a view which we embrace, your Honour.
KIRBY J: I think it is a very proper course for the Director to take.
GLEESON CJ: I must be – 5.19, you said?
MR BENNETT: Of the respondent’s submissions.
GLEESON CJ: The respondent’s summary of argument?
MR BENNETT: Yes. The paragraph begins with the words “It is acknowledged” and it is the second sentence of the two sentences beginning “Consistently with”.
KIRBY J: That did not escape your eagle eye. Perhaps the Director is merely prescient.
GLEESON CJ: Is that a convenient time?
MR BENNETT: It is, your Honour, although may I just say one thing before we adjourn. That is one general proposition in relation to what has been put a number of times in the Court this morning concerning a general policy of the desirability of Commonwealth offences being treated the same way in all respects to achieve uniformity. That is, given that the six States treat State offences differently, there is equally a policy, one might think, that a person being tried or sentenced in a State for a federal offence might wish to have or should have the procedures and sentencing judgments assimilated to those which would apply to a State offender in that State.
In other words, there are two inconsistent needs for uniformity. There is the need for uniformity between the federal and State offender in the State and the need for uniformity between the federal offender in one State and the federal offender in another State. One cannot have both. When one uses a slogan like “uniformity”, in my respectful submission, it is necessary to remember that there are two types of uniformity which have to be elected between in various contexts and one should not just look at one and ignore the other.
KIRBY J: Yes, but until 1984 or whenever Part 1B came in, the former “slogan” applied. That is to say, it was assimilated to uniformity with the particular State offences and so on, whereas it does seem that 1B has taken a step in the other direction to say if it is a federal offence, we are going to have the core sentencing principles the same throughout the country, and that seems a rational principle.
MR BENNETT: Your Honour, we submit it does not go that far and that is the issue in this case.
KIRBY J: I just did not think it should be left on the basis you put it.
GLEESON CJ: We will adjourn and resume at 2.00 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.00 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: Your Honours, apropos of what I was saying this morning about the two types of uniformity, uniformity between federal offences and State offences in the State, and uniformity between federal offences and federal offences in another State, it is noteworthy that in the second reading speech, to which my learned friend referred, which is at tab 11 of our materials, your Honours will see on the first page – this is the paragraph which goes over from page 1602 to 1603, and it is the paragraph before my learned friend started reading. Your Honours see that Mr Brown says:
Because of the close association of Federal and State/Territory prisoners it has been the policy of successive Commonwealth governments to maintain intrastate parity of treatment for Federal offenders. The current Commonwealth legislation applies State and Territory laws . . . However, the increasing divergence . . . resulted in increasing use of administrative measures to ensure that Federal offenders are not disadvantaged.
Then there is the passage he read which I will not re‑read which shows that one of the concerns is to ensure this absence of disadvantage. If one goes to the explanatory memorandum, at the end of that section, your Honours will see how parliament has set out to do it. Your Honours see the main purposes are – 1. is a general one, then:
2. to give further guidance to the courts when sentencing federal offenders;
to be contrasted with:
3. to provide a separate regime for fixing federal non‑parole periods rather than relying on applied State or Territory legislation;
So there is a sharp distinction drawn between giving guidance in relation to sentencing and providing a separate regime which may well , if I could put the phrase in inverted commas for the moment, cover the field in relation to other matters.
GLEESON CJ: How, if at all, does the federal legislation set out to deal with the extremely common practical situation, especially in relation to drug offences, that an offender will be charged with both State offences and federal offences, charged with, for example, importation of drugs and possession of drugs or supply of drugs?
MR BENNETT: Your Honour, that is one of the situations where it is obviously desirable that State and federal procedures be accommodated and have a close relationship, and that is one of the reasons why one should not interpret this legislation as moving to the opposite extreme, as moving from a regime where you just apply State legislation to a regime where you have this federal model which makes it unnecessary ever to go to State and Territory legislation. That is just not what has happened.
What has happened is that there has been a partial retreat from the absolute position of just having State and Territory legislation but only a partial retreat, and that becomes important when one looks at the question we have to look at in this case. Yes, I am reminded, your Honour, in answer to your Honour the Chief Justice, that section 19(3) is one provision which accommodates the situation where there are two offences, a State and federal offence in the same indictment.
KIRBY J: So it has been specifically dealt with, has it, that particular problem?
MR BENNETT: In one respect, your Honour, yes.
KIRBY J: That is 90(3) of the ‑ ‑ ‑
MR BENNETT: Section 19(3), your Honour. Now, the next matter is, I understood my learned friend’s concession that before 1989, section 68 would have applied to the sentencing situation. I took that – and maybe I am being unfair in doing this – as conceding the proposition we have put in paragraphs 5 to 6, that section 68, independently of Part 1B for the moment and independently of otherwise providing, applies to sentencing.
Now, we have dealt with that in paragraphs 5 to 6 of our submissions, but may I just say this, that there is virtually universal authority on the proposition that section 68, by using the word “conviction”, applies to sentencing, and the very fact that it applies to appeals, makes that a necessity, otherwise one would have a fragmentation of the criminal process. One would have – the judge would suddenly be taking off the federal hat and putting on a State or Territory hat when the jury convicted, or the prisoner pleaded guilty.
KIRBY J: Was that not argued in one of the recent cases, Solomons or ‑ ‑ ‑
MR BENNETT: I do not think that issue was, your Honour.
KIRBY J: I thought we had dealt with that in one of the cases.
MR BENNETT: Gee, I think, dealt with that phrase, although we did not intervene in Gee.
GUMMOW J: There is House of Lords authority that the phrase “conviction” certainly can include “sentence”. It is Re S [1971] AC 481 at 506. It is a speech of Lord Upjohn.
MR BENNETT: I am indebted to your Honour for that, but in any event, as I say, it seems that my learned friend’s concession in relation to the period prior to 1989, unless he resiles from it, must involve a concession that the section on its own would apply to sentences, and that the issue which we are concerned with here is simply an issue of otherwise providing.
So far as section 68(7) is concerned, that does not really resolve the matter either way. All it is doing is saying that in relation to a particular type of case, a reference to a:
trial or conviction shall be read as including any conviction or sentencing –
We say that “trial or conviction” ordinarily includes “conviction or sentencing” and therefore all that does – in other words, we place the emphasis on the words “in accordance with any such provisions” at the end of paragraph (7). I concede it is possible to read it the other way but, in my respectful submission, it is more in accordance with the structure of the whole section to read it the way I have suggested.
GUMMOW J: What is that way, again, Mr Solicitor?
MR BENNETT: That is to say that subsection (7) is making clear that the whole of subsections (1) and (2) apply to the particular case of an indictable offence dealt with summarily, and in order to do that, in order to translate what they mean, the reference says to a “trial or conviction” it really is including “any conviction or sentencing in accordance with any such provisions”, but would, in any event.
Now, that is all I need to say about that. Paragraph (7) of our submissions, we have dealt with this issue of procedures or powers, and we submit that there is no such distinction to be found in section 68. There is, of course, a distinction between jurisdiction and powers in 68(1) and (2) but procedure almost necessarily involves powers. If you have the procedure for a jury trial, that involves the power to summon a person for jury service. The procedure to hold a person to bail involves the power to commit a person to prison pending trial, and so on.
GUMMOW J: Are both section 68(1) and (2), in their State application, anyway, supported by 77(3)?
MR BENNETT: Yes, your Honour, they would be.
GUMMOW J: Without 51(xxxix)?
MR BENNETT: Can I cheat, your Honour, by answering that in the alternative and saying, yes, but if necessary, they would be, but if I were wrong in that, they would be supported by 51(xxxix). Subsection (1) may be 51(xxxix), perhaps a bit more than subsection (2).
GUMMOW J: Yes, I think so.
MR BENNETT: Now, that brings me to the main part of my submission on section 68 which concerns the test to be applied. What we submit is this. Section 68 covers a specific aspect of the area covered by section 79, and it should be read as incorporating the same qualification. Section 79 says:
except as otherwise provided by the Constitution or the laws of the Commonwealth –
and section 68(1) uses the words “so far as they are applicable”. We submit that achieves the same result. That, really, is what has been said by the court in the cases referred to in footnote 10 of our submissions, although it has not said it directly in relation to other Commonwealth Acts. Brown and Wong were, of course, both dealing with the Constitution, although the State cases referred to are perhaps of more assistance. The way one would analyse it at the end of the day is this, that there is a test for inconsistency under section 109. That test has, as part of it, a reference to “covering the field”.
There is a test for inconsistency in relation to two lots of Commonwealth legislation which involves the word “repugnancy”, and while that does not directly involve “covering the field”, it is quite clear that there can be repugnancy where the earlier Act, to use the different phrases, “leaves no room for the later Act” or – there were three phrases that one sees used. There is “are complete upon its face”, “leaves no room” and “not irreconcilable with”.
Now, those three are also used from time to time in relation to section 79, and we would submit, therefore, in relation to section 68. The truth probably is that there is a close relationship between the two. There are, of course, differences. The tests are different but, at the end of the day, in most cases – this is why I qualified the footnote – one is going to get the same result. One is looking to see whether there is such a degree of intention ‑ ‑ ‑
GUMMOW J: I thought there was authority distinctly saying that 109 was not ‑ ‑ ‑
MR BENNETT: Yes, Justice Fullagar, I think, discussed it in one case which its name escapes me ‑ ‑ ‑
GUMMOW J: No, later, that 109 was not the way of looking at these sections.
MR BENNETT: There is no doubt of that, your Honour, there is no doubt.
GUMMOW J: In Moorebank itself?
MR BENNETT: Yes, we have discussed that, I think, in footnote 12. I think in GPAO that was said, among other things, and it was discussed in Austral Pacific ‑ ‑ ‑
GUMMOW J: The starting point, really, is what Sir Owen Dixon and the other Judges call the basal nature of 79 and 68, and the need to avoid a situation where they are constantly in need of re‑enactment.
MR BENNETT: Yes.
GUMMOW J: They have this expansive contracting inbuilt characteristic.
MR BENNETT: Yes. Well, they have to, your Honour. Each time a State Act is passed, one has to look at whether or not it is irreconcilable or not repugnant, or whatever of the tests one uses, but we would submit it is very close to the repugnancy test with inconsistent Commonwealth legislation. It is not totally assimilated to it, because there one has the element that it is the same Parliament and one assumes that it intended the legislation to stand together.
That principle, of course, does not apply when section 68 or 79 picks something up. On the other hand, one does not apply the straight section 109 test. So it is a test somewhere between the two, and as I say, the phrases used by this Court, have been the three I have referred to: “complete upon its face”, “left no room for picking up a State law” and “not irreconcilable with”, and whichever of those tests one applies here – and this is a part of the case that my learned friend, the Director, will deal with – it is very easy to say that Part 1B is not complete on its face.
In relation to the issue of aggregation, it deals with aggregation for summary offences and not for indictable offences. Why, one asks rhetorically, is that complete on its face? Why does that leave no room for picking up a State law, applying the same principle to indictable offences? Why is it irreconcilable with a State law doing that? Applying those tests, it just is not in that category.
KIRBY J: It was suggested that in summary federal offences you might get multiple offences of the kind under the Social Security legislation, whereas with indictable offences, they are likely to be serious and therefore to have to comply with the Pearce principle of specifying a particular sentence, and for that particular more serious offence.
MR BENNETT: Again, your Honour, at the end of the day, when one does that, one has to decide whether to have cumulative or consecutive sentences or partially one and partly the other. In order to do that, one performs very much the exercise that one performs under these statutory provisions.
KIRBY J: That is something that perhaps you ought to have addressed to the Parliament when it was enacting this provision. It does seem curious that they have not dealt with it. They have dealt with the summary cases but not with the indictable.
MR BENNETT: They dealt with it on the assumption that they had the State Codes and Territory Codes and they were, in effect, fiddling with it. They were saying, “Well, in certain areas, we are going to lay down a full” – as it says in the explanatory memorandum, “In some areas we are going to lay down a Code. In some areas we are going to offer some guidelines” or just not deal with it, perhaps, and leave it to the States and Territories.
KIRBY J: It does seem that this is a matter of power, as distinct from simply a matter of guidelines of how you go about sentencing. At least that has been put to us and that seems to be borne out by the common law history because of the difficulty of sentencing people at different stages once they were sentenced. That seems to have been the history of it.
MR BENNETT: Your Honour, there is no doubt the common law started with a proposition, you looked at each offence separately and if you, for example, failed to lodge a tax return in 10 successive years, one sat down and worked out, how bad was it not to lodge a tax return in 1991, how bad was it in 1992, how bad in 1993, and then one says at the end of that exercise, “Well, to what extent should I make the sentences cumulative or not?”, and one wonders why, in many of those cases, one would not get exactly the same result and a much more rational result much more quickly by simply saying, “Well, the real offence is to fail to file a return for 10 years.”
Now, the problem then is you might find in some cases that is worse than some of the parts, and there is a specific provision covering that saying, no, you cannot have a total sentence which is more than just some of the maximum parts, but within that range that discretion is given.
My learned friend went to section 52 of the Territory legislation and pointed out how bits of it were not picked up and then said at the end, here is a situation where you are rewriting it by adopting some of it, but in our respectful submission, that is not at all what one is doing. The parts of section 52 which are not picked up are all quite clearly severable. They are dealing with different cases. The two subsections deal with cases under particular provisions, and there is a clear distinction between “indictable” and “summary offences”. To say we apply it to indictable offences, other than those specific Northern Territory offences referred to, is not rewriting the section. It is simply saying we will take some of it and not others of it. If one looks ‑ ‑ ‑
KIRBY J: But the scheme of it, it is suggested to us, is a comprehensive provision which is focused on, per se, Territory offences, and yet you are putting a blue line through everything except indictable.
MR BENNETT: Yes. Your Honour, it is said, in effect ‑ ‑ ‑
KIRBY J: It is a mangled version of it after you have done that.
MR BENNETT: If the section had been drafted, this section applies to (a) indictable offences, (b) summary offences, (c) ‑ ‑ ‑
KIRBY J: That is the way Sir Robert Garran said they should be drafted.
MR BENNETT: Yes. Then it might be a bit easier to wield the blue pencil, but interpretation and severance – and this is analogous to severance – has come a long way since one could only use a blue pencil.
KIRBY J: There was the supplementary point that there is the direction in, I think, section 5 of the Territory Act, which gives you sentencing principles, and it is supposed to be related to the integrated operation of that section plus section 52.
MR BENNETT: But there is nothing relevantly integrated, your Honour, about saying a provision applies in circumstance X and circumstance Y. There is no integration there. Integration is where the provision says, “In circumstance X, you do X, and then you do Y”. That is integration. There is no integration when the same result is imposed on two different situations. If one compares the cases where it was said you could not perform that sort of operation, one sees exactly that distinction, because if one looks, for example, at the British America Tobacco Case, there one had a section which created a liability and another section which said you could only sue on it if you gave notice. Clearly, those are integrated, in the relevant sense.
The same in Solomons, where you had provisions about ordering costs and ordering a scheme for payment out of state revenue. Clearly, there you have an integrated set of provisions and you cannot take a bit out of it. But where you have a provision which will operate totally independently in each case, which happens to apply in ten situations and it can only be applied to one of them, that is not the sort of case where one says, “Here is an integrated whole you cannot break up”. It is different in kind.
KIRBY J: Yes, but you do end up, then, with a differential way of sentencing federal offenders for exactly the same offence of the same Parliament, with the same punishment provided by the Parliament as the maximum in three jurisdictions of Australia – South Australia, the Northern Territory and, we are told, the ACT – and not in the other main jurisdictions. That seems an insidious way of introducing differential, unequal punishment of federal offenders.
MR BENNETT: Your Honour, the only other contrary argument is that if States have different regimes, one lives under those regimes, and to the extent that the Federal Government comes in and imposes federal offences on people in those regimes ‑ ‑ ‑
KIRBY J: Federal Parliament.
MR BENNETT: Yes, Federal Parliament. Then, it may, to some extent, adopt the particular State’s procedures and methods. If a particular State is more generous to the accused, or more generous to the prosecution, that is a consequence of living there, in the same way as it is a consequence of living in a State that one is subjected to different laws while in that State.
KIRBY J: Yes, but we are not talking about general different laws. We are talking about different punishment under the law of the one Parliament, namely, the Parliament of the Commonwealth.
MR BENNETT: Yes, your Honour.
KIRBY J: Do not forget, we have three judges of this Court who took the view that the Constitution required equal punishment.
MR BENNETT: I am going to come to that aspect, your Honour. That is the final part of my submissions, dealing with discrimination.
KIRBY J: There is one statutory point you have to deal with and that is that the provision in, I think it is, section 16 requires fixing the punishment for the particular offence and that appears to indicate a specificity of fixing the punishment, as distinct from aggregating. This is the step by step process Mr Grace went through.
MR BENNETT: Yes. The problem with that argument, your Honour, is the provision in the definition section about singular and plural, which is rather contrary to section 16(2) of the federal Act, the fact that:
In this Part, expressions in the plural do not imply that expressions in the singular do not include the plural.
So one cannot, in my respectful submission, draw that inference. It is one of the very rare situations a Parliament was at pains to appreciate that this was an Act where the singular, even more than usual, might have to include the plural.
KIRBY J: But it says “expressions in the plural”. It does not say “expressions in the singular”.
MR BENNETT: No, your Honour. It is saying that the fact that there are:
expressions in the plural –
does not imply:
that expressions in the singular do not include the plural.
The provision is talking about expressions in the singular. It is saying “though not affected by the presence of expressions in the plural”. In other words, what it is saying is, you may not go through the exercise my learned friend Mr Grace seeks to go through and go through the Part and say, “Here is something in the singular, here is something in the plural, that means the singular does not include the plural”. It is the very exercise he sought to do which Parliament has gone out of its way to counter.
KIRBY J: But the philosophy in 16A(1) is:
severity appropriate in all the circumstances of the offence.
MR BENNETT: Or offences, your Honour. Under the Interpretation Act, unless the contrary intention appears, the singular includes the plural.
KIRBY J: That has nothing to do with 16(2), which talks of “the plural”.
We are talking here of the singular.
MR BENNETT: No, your Honour. Section 16(2) is talking of the singular, your Honour. Section 16(2) is saying that expressions in the singular should not be construed as including the plural merely because there are other expressions in the plural. It is about expressions in the singular, not about expressions in the plural.
KIRBY J: But as I understood it – I may have got it wrong – what is suggested to us is that the philosophy of 16A(1) is individualised determination of penalties for particular federal offences, and that that is supported by what this Court had said in Pearce.
MR BENNETT: No, your Honour. That would be inconsistent, apart from anything else, with 4K itself, your Honour, because under 4K a court is entitled, in the circumstances to which that section applies, to look at aggregation. The section is just not talking about aggregation, it is assuming that you are sentencing for an offence or offences and then saying:
In determining the sentence to be passed –
or sentences to be passed –
or the order –
or orders –
to be made, in respect of any person –
or persons –
for a federal offence –
or federal offences –
a court must impose a sentence –
or sentences –
or make an order –
or orders –
of a severity appropriate in all the circumstances of the offence –
or offences, which is the way one reads any statute. The singular includes the plural. It is, in my respectful submission, not correct to say that the whole philosophy of that section is that you just look at the offence. The philosophy of it is that you look at the offence or offences for which the particular sentence is being imposed. The emphasis is not on the singularity.
Before leaving this part of the case, I should try to simply remind your Honours that the schedules to our submissions set out the provisions in the various States and Territories dealing with aggregation and dealing with joinder offences. We have set out what occurs in each State. In the second part of the schedule, which is the last page of our submissions, we have dealt with provisions for aggregate sentences and your Honours will see that in the Commonwealth it applies to summary only.
In South Australia and the Northern Territory, it is summary and indictable. In Tasmania, it is summary and indictable and footnote 79 explains that it was originally in the Criminal Code and then re‑enacted in the Sentencing Act. In the Northern Territory, it is summary and indictable. In the Australian Capital Territory, it is summary, and the view taken in relation to this case would no doubt apply in the Australian Capital Territory, where the legislation is similar. We have made that clear in the asterisked footnote.
I think there may be a blank in your Honours’ document. Under South Australia, on that page in Schedule B, under the heading “Legislation”, there is a reference to the Criminal Law (Sentencing) Act. That should have after it the letters, section 18A. I think that may be omitted from your Honours’ copy.
KIRBY J: Section 18A?
MR BENNETT: Yes, your Honour.
KIRBY J: As well as section 278?
MR BENNETT: I do not have the reference to section 278. I do not know.
KIRBY J: I must be looking at the wrong schedule.
MR BENNETT: It is Schedule B, your Honour.
KIRBY J: I see, yes.
MR BENNETT: Yes, section 278 is dealing with joinder, in Schedule A.
GUMMOW J: Now, your submissions, paragraphs 8 and following – do they deal with the cases which are concerned not so much with otherwise providing, but rewriting and rendering inapplicable? What is the relevance footnote for them? I understand your footnote 10. That is talking about a different aspect of it.
MR BENNETT: Yes, your Honour. What we are submitting is that the requirements set out in section 79 about “otherwise provide ‑ ‑ ‑
GUMMOW J: I know, but the cases that give content and help explain the circumstances in which you cannot pick it up because you are changing it, are they dealt with here? There are cases that deal with a situation where you cannot pick it up because to pick it up is to rewrite it. Now, are those authorities dealt with in your footnotes?
MR BENNETT: Yes, they are dealt with in paragraph 18, your Honour, and in footnote 28.
GUMMOW J: Thank you.
MR BENNETT: Now, in relation to discrimination – I do not want to spend a lot of time on this here at the hour, but let me just say this. We do not accept that the effect of Leeth is that there is a principle of the type that my learned friend refers to, but the Court does not need to decide that in this case, because if there is one thing Leeth clearly does stand for, on all seven of the judgments, it is that it is not discriminatory, except in special circumstances, merely to hold up a mirror so that people are governed in particular circumstances by State or Territory law.
The mere fact that that may operate differently in different States or Territories is not itself discriminatory. That is very clear from Leeth itself, as I say, and we have shown in paragraph 32 of our submissions how each of the Justices has said that. The short proposition, if one wishes to express it in terms of a metaphor, is that a mirror is not an instrument of discrimination. It may show everyone ‑ ‑ ‑
KIRBY J: I do not understand this metaphor.
MR BENNETT: A mirror may show everyone something different when the person looks into it, but the mirror treats everyone the same by reflecting what it sees. In the same way, a Commonwealth law which says, “State law applies to X” may operate differently on people in different States, but what it does – and this is why the phrase “mirror taxes legislation” is used in relation to that type of tax – all it does is say, “Well, we will treat everyone the same by applying the law of the State the person is in”.
Perhaps I can emphasise that in a slightly different way. Part of cooperative federalism is that Parliaments of the States and Territories and the Federal Parliament have, within the limits of the Constitution, to determine boundaries and areas which shall be governed by State or federal law.
KIRBY J: That was called a slogan in Wakim. Is it back?
MR BENNETT: Well, your Honour, maybe it is, but to the extent that the Constitution permits the powers to be shared, or not taken up, it must necessarily have the effect that people are treated differently. The whole concept of the autochthonous expedient – which I hope is not a slogan – of State courts being vested with federal jurisdiction assumes that certain State procedures will be adopted so that some federal cases will be dealt with differently in different States.
GUMMOW J: The reference to “participating States and Territories” in the Crimes Act itself is an illustration of what you are talking about, I think, is it not?
MR BENNETT: Yes, it is, your Honour. If I can just give this example from a case in which your Honours refused leave recently, we all know how different rules of discovery may affect the results of litigation. Now, it is clear that the Commonwealth is entitled, in giving federal jurisdiction to State courts, to permit State laws of discovery to apply, as it does under the Judiciary Act. Now, that may produce a different result, under a federal Act, in different States. We, with respect, say, so what?
KIRBY J: Yes, well, so what? It may have that effect in civil litigation. We are talking here of taking away people’s liberty, and that is one of the reasons why, it seems to me, other things being equal, if people are punished under the one law of the one Parliament of this nation, they should be dealt with equally. It should not depend on the chance factor, when you import drugs, as to whether you come before a court in Western Australia or come before a court in New South Wales.
MR BENNETT: It necessarily does, your Honour. For example, there would be no committal in Western Australia if one were charged with a federal indictable offence there.
KIRBY J: That is a procedural matter. I am talking of the bottom line, Mr Solicitor. I am talking about loss of liberty in the way a sentence is structured.
MR BENNETT: But, your Honour, at the end of the day, in the vast majority of cases, and possibly in all cases, there is not going to be a significant difference in the result between whether one aggregates or does not aggregate, because in each case one has, at the end of the day, to perform the exercise of saying, “Is the overall sentence appropriate, bearing in mind the overall conduct?” So, at the end of the day, it is a structural matter. It is a question of how one gets to the result, but not necessarily, and indeed not normally, one might well think, a different result.
CALLINAN J: I must say, Mr Solicitor, in this case, I wondered how the appellant would be better off if he won the appeal.
MR BENNETT: Precisely, your Honour.
CALLINAN J: I am not too sure that he might not be worse off. Perhaps I have missed something, I do not know.
MR BENNETT: The problem in this case was that it is probably the outer boundary of when it is appropriate to join different offences and regard conduct as a single course of conduct. We are not concerned with that here, but that makes it a difficult case to test that against. We respectfully adopt what your Honour has put to me that, at the end of the day, there is not such a big difference. This is not as dramatic as not having a committal and it is not as dramatic as many differences which might be characterised as procedural. At the end of the day, it certainly affects sentencing and sentencing is an important matter of civil liberty, but it does not affect it so dramatically as to make this a discrimination of the relevant type, assuming ‑ ‑ ‑
KIRBY J: I am still not entirely clear as to what the aggregation involves. I mean, if one accepts the principle of totality, then it seems to me, at least arguably, the principle is one which is favourable to – or should be one favourable to the minimisation of the loss of liberty, because the problem with individual sentences is that they may lead to an aggregation that is more burdensome than if you stand back and look at the aggregation of them. I put this to Mr Grace, but he did not seem to embrace that, although he has been pressing totality on us ‑ ‑ ‑
MR BENNETT: First, your Honour, it depends how much you make them concurrent or consecutive, but, at the end of the day, one has to perform that exercise. If I come back to my example of the 10 years’ failure to file a tax return, which is perhaps the clearest example, that might be one of the rare cases where you are worse off, in one sense, with aggregation, because a court might well regard the failing to file a tax return for 10 years as a more serious matter than even 10 times each individual matter of failing to file a tax return.
Whether that is so or not, what the court has to do under either regime is stand back at the end and say, what is appropriate for a person who has not filed a tax return for 10 years? The only thing is that one has otherwise to go through the intermediate steps of saying, well, what would I give him for not filing it in 1991, what would I give him for not filing it in 1992, and so on.
GLEESON CJ: Are there any authorities on the principles to be applied in imposing an aggregate sentence, as distinct from the principles with which we are familiar in relation to individual sentences?
MR BENNETT: Your Honour, can I leave that to the Director? That is something not within my ‑ ‑ ‑
GLEESON CJ: Yes.
KIRBY J: It is his department.
MR BENNETT: I apologise for being unable to answer it. The other matter which we have referred to in our submissions is the United States and Canadian authorities, and none of them go as far as is suggested here. We have referred to this in paragraph 31. In footnote 52, we have dealt with Canada and, in footnote 53, with the United States position. For those reasons, we submit that merely to say one is subject to State or Territory law in a particular respect is not itself discrimination of the relevant type, assuming, against my first submission, that there is such a principle. May it please the Court.
GLEESON CJ: Thank you. Yes, Mr Bugg.
MR BUGG: Yes, if I could just deal with your Honour’s question in relation to any principles for the sentencing of a matter such as this. Major (1998) 70 SASR 488 was one of the authorities in my learned friend’s list. That gives some guidance or direction as to an appropriate path to follow in sentencing where there is an aggregate sentence, and it really was a path not dissimilar to that recommended by the majority in Pearce, that is, notionally set a sentence for each of the criminal acts, then step back from it, look at the totality of it. That is spelt out ‑ ‑ ‑
KIRBY J: I hope that is not a two‑stage test.
MR BUGG: I suspect it is probably a three‑stage test. You have to unscramble the egg, scramble it and then unscramble it again. Your Honours, I will not spend much time at all on the issue as to whether or not section 4K(3) and (4) deal with summary proceedings only. There is no debate amongst us about that at the Bar Table.
To assist the Court, there are three new references I can give your Honours, which were provided to me by the learned Solicitor’s instructor this morning. The first is Fraser v The Queen (No 2) and Meredith v The Queen(No 2) (1985) 1 NSWLR 680, there dealing with the question of the meaning of information and complaint in the Costs in Criminal Cases Act (NSW), the Court of Criminal Appeal. Your Honour Justice Kirby was President and Justice McHugh was one of the members of that court.
Taylor v Environment Protection Authority, (2000) 50 NSWLR 48 ‑ that looked at the question of the meaning of complaint, information, in the Land and Environment Court. Then The Queen v Hull (1989) 16 NSWLR 385, dealing with a similar issue. They were based on the peculiar New South Wales history, where you have information and indictment being a source for prosecutions in the Supreme Court and the District Court. I leave those references with your Honours.
The only other section in the Crimes Act which may give your Honours some assistance as well on this issue is section 15C, dealing with the form of indictments, informations and summonses.
GLEESON CJ: So far as the present proceedings are concerned, it is a non‑issue.
MR BUGG: Yes, that is right. The only other issue then which I would wish to address your Honours on is the question of whether or not Part 1B is a complete Code and as such, therefore, does not embrace the sentencing of offences, my learned friend’s submissions about the singular being used throughout those passages and sections and subsections that he referred the Court to. If I could just seek your Honours’ indulgence to refer to a passage from my learned friend’s outline of submissions to the Court of Criminal Appeal, purely and simply to give you some indication of the nature of the Commonwealth’s approach to aggregate sentencing, relevant to sections 4K(3) and (4). At paragraph 40 of his outline of submissions to the Court of Criminal Appeal, he said:
In addition to section 1353 of the Social Security Act 1991, now repealed, over 40 current Commonwealth Acts permit aggregate sentencing, only, however, in relation to summary offences, and only when the multiple offences are committed against the same provision or section of a particular Act. The provision variously permit joinder in the same “information, complaint or summons”, “complaint or summons”, “information or complaint” –
He then gave examples of eight sections of Acts which permitted aggregate sentencing under ANew Tax System (Family Assistance) (Administration) Act 1999, section 179; the Telecommunications Act 1997, section 584; the Broadcasting Services Act 1992, section 214; the Veterans Entitlements Act 1986, section 209; and so on. All those sections embracing the concept of aggregate sentencing would have to be sentenced by a court in accordance with Part 1B of the Crimes Act, and that is the strongest argument, in my submission, against the proposition that my learned friend was putting to your Honours this morning.
Obviously, a court exercising summary jurisdiction would have to sentence in accordance with the provisions of Part 1B persons coming before it, should it choose to sentence in an aggregate way. That, in my submission, is the simplest and speediest way to answer that submission from my learned friend, and I rely on the balance of the submissions which are before the Court, both from the learned Solicitor and my office.
CALLINAN J: Just before you sit down, Mr Bugg. Why is the imposition of an aggregate sentence not within, for example, section 16BA(2) of the Crimes Act? Is not the imposition of an aggregate sentence a convenient way or a proper way of taking into account all or any of the offences in respect of which the person has admitted his guilt?
MR BUGG: Yes, it is, your Honour.
CALLINAN J: Do you adopt that as a submission, that this is no more than to give effect to section 16BA(2)?
MR BUGG: I would, with respect, adopt it, yes, your Honour.
GLEESON CJ: Unless Part 1B is capable of applying to the imposition of an aggregate sentence, it is difficult to see how section 4K(4) works.
MR BUGG: That is right, 4K(4) is dependent on Part 1B.
GUMMOW J: Well, it preceded it. 1B was enacted in the knowledge that 4K was there.
MR BUGG: Yes, that is right. That is why there is such power in what my learned friend was putting, in the context of a different part of his argument, to the Court of Criminal Appeal in this matter, that there are so many sections – 40, he stated in his outline – where aggregate sentencing, albeit in the summary sense, was contemplated.
GLEESON CJ: What, those sections replicate 4K, do they?
MR BUGG: They permit aggregate sentencing.
GLEESON CJ: You mean they are picked up by 4K?
MR BUGG: Yes.
GLEESON CJ: Right.
KIRBY J: Could you help me? You accept that you cannot have aggregate sentencing at common law, you need a statute to be able to do it,
so that we are looking, therefore, for a statutory source. Can you explain, from the history of it, why 4K – which, I understand, was in use in 1984 ‑ did not extend to indictable crimes?
MR BUGG: I cannot explain. There is no assistance from the explanatory notes, there was no parliamentary debate about it, and I just cannot assist your Honour. It would be speculation.
GLEESON CJ: Is it not related to what Justice Tadgell said in the case that we were referred to earlier?
MR BUGG: Yes, it did.
GLEESON CJ: If you look at the whole of section 4K, it was to deal with problems about joinder, was it not?
MR BUGG: Yes, it was.
GLEESON CJ: I am thinking of the case of The Queen v Bibaoui [1997] 2 VR 600 and the passage at 606 to 607.
MR BUGG: His Honour was there talking about primarily the problem of joinder, not the issue of aggregate sentencing – which was the qualification that my learned friend put to that passage when it was being discussed this morning.
KIRBY J: I am just curious that the Federal Parliament, when it was expressly enacting something to provide a faculty, did not make it of general application.
MR BUGG: I suspect, when 4K(4) was enacted, Part 1B not being in existence and the Commonwealth sentencing system being in the fragmented and State‑dependent form that it was, it did not seek at that stage – that would be my only explanation – to do anything about it because at that time there obviously had to be some tidying up in terms of Part 1B, which was still in train.
GLEESON CJ: Thank you. Yes, Mr Grace.
MR GRACE: It would have been extraordinary, indeed, for the Parliament, when it was passing Part 1B in 1989, to have considered aggregate sentencing on indictment at all, because the only legislature in Australia that had provided for it at that time was in Tasmania.
GLEESON CJ: When it passed Part 1B, did it consider aggregate sentencing in relation to summary offences?
MR GRACE: No, it did not.
GUMMOW J: Well, they were there.
GLEESON CJ: Part 1B was enacted in the light of the knowledge of the capacity to impose aggregate sentences in respect of summary offences.
MR GRACE: Yes.
GLEESON CJ: Does it not follow that the principles in Part 1B must be capable of application to aggregate sentencing in relation to summary offences?
MR GRACE: Even if that be so ‑ ‑ ‑
GLEESON CJ: How could it not be so?
MR GRACE: I think I said in my argument this morning that there is an exception and an anomaly created by the apparent ignoring of the fact of section 4K(4) being in existence at the time Part 1B was passed to cater for that within Part 1B, but, putting that to one side, I do accept that the principles contained in Part 1B, insofar as they are applicable, have to be applied in the imposition of sentences pursuant to 4K(4).
GLEESON CJ: Where does that leave your argument, based on the language of section 16A and following? References to the singular, for example.
MR GRACE: Because section 16A clearly refers to those cases where offences are not joined, whether they be summary or indictable. When I said insofar as they are applicable, talking about the provisions in Part 1B, it obviously has to be severed in terms of what are the applicable principles that apply to section 4K(4) sentences.
GLEESON CJ: I thought you were putting an argument that the language, the manner of expression, of section 16A and following sections in Part 1B was inconsistent with the notion of aggregate sentencing.
MR GRACE: It is, I maintain that.
GLEESON CJ: How then can it apply in relation to aggregate sentencing under 4K?
MR GRACE: It must be adapted, insofar as they can be made to be apply. For instance, the checklist in section 16A(2) may be applicable, at least in part.
CALLINAN J: Mr Grace, why would aggregate sentencing not be permissible, and, indeed, something contemplated, by the application of 16A(2)(c)? The fact that somebody is guilty of some other offence is “part of a course of conduct”. That certainly applies here, does it not?
MR GRACE: As the learned Solicitor said, it is at the outer edge as to whether it is “part of a course of conduct”.
CALLINAN J: Take (m), “character, antecedents”. If he has been convicted of other offences or he is guilty of other offences, that is part of his character and antecedents, is it not? That, (m) taken with (c)?
MR GRACE: With respect, I would submit that (m) does not apply in that circumstance. (c) may.
CALLINAN J: At any rate, you concede that (c) may apply?
MR GRACE: Yes. Could I just answer what your Honour Justice Callinan put to my learned friend, the Director, concerning the application of section 16BA. There is an important distinction to be made and that is that when offences are taken into account, pursuant to that section, the offences that are taken into account are not the subject of the conviction, or, indeed, a formal plea of guilty.
CALLINAN J: Why is that? Because (2) says “if the person admits his guilt”.
MR GRACE: Yes.
CALLINAN J: Does he not do that by a formal plea of guilty?
MR GRACE: No, your Honour.
CALLINAN J: A formal plea of guilty is not an admission of guilt, is that what you are saying?
MR GRACE: They are not a subject of a count on any indictment. They are pursuant to a list, which is a document referred to in section 16BA(1)(a), and it is clarified in subsection (1)(b).
CALLINAN J: Do you accept, if it had not been done on indictment, but if a list had been provided and signed by the Director, then it would be possible under subsection (2)?
MR GRACE: The procedure that is talked about in section 16BA is a procedure that allows someone who has outstanding a large number of offences, for which the prosecution determines and exercises its discretion, consented to by the defendant, chooses not to proceed by way of indictment against that person, but otherwise allows that person to have those matters taken into account in passing a sentence in respect of the charges that he does plead guilty to, to have that course adopted. But it does not, in our submission, contemplate the type of aggregate sentencing that occurred in this case. It is a different procedure at all.
The other point I wish to make on this topic that your Honour the Chief Justice raised is this. The joinder of the offences in relation to the appellant’s indictment is not the same type of joinder that is contemplated by section 4K(3), so one is talking about a different form of joinder and, therefore, a different form of aggregate sentence.
GLEESON CJ: Not if 4K(3) is limited to offences against the same law.
MR GRACE: Yes, so this is a much wider concept.
KIRBY J: You heard the Solicitor say that, in the end, a sentencing judge is in any case going to stand back and look at the aggregate effect, and, indeed, that would seem to be the requirement of the principle of totality that you were arguing at great length in the earlier case.
MR GRACE: Yes.
KIRBY J: What is the mischief that is involved – is there a mischief involved in the interpretation of the federal law that you are arguing against?
MR GRACE: Yes, there are a number of factors. Firstly, it masks error. One does not know what amount or what length of sentence a judge is imposing in respect of each offence the subject of the aggregation. Secondly, it can lead to inconsistency ‑ ‑ ‑
KIRBY J: Let me just understand that. You say it is one thing to have a totality of the ultimate penalty, but at least the merit of the construction of the Crimes Act that you argue for requires a transparency in the fixing of the particular penalty for each proved or admitted offence?
MR GRACE: Yes.
GLEESON CJ: Does that assume that Major is wrong?
MR GRACE: Major adopts a different approach, a halfway approach. That is, you specify what you would have imposed in respect of each individual sentence and then proceed to impose an aggregate, which is not the same thing as what happened in the appellant’s case. In the appellant’s case, we do not know what his Honour attributed to each individual offence. So the second point is that it can lead to inconsistency of treatment, because it permits sentences being imposed without the giving of adequate reasons. It reduces confidence, therefore, in the integrity of the criminal justice system. It impairs the use of sentencing as a deterrent. What is the deterrent effect of the appellant’s sentence, one could ask?
GLEESON CJ: I agree entirely.
MR GRACE: For different reasons, your Honour, because the court does not inform the community of the penalty for each individual offence the subject of the aggregation, and how do courts across the country adopt, for comparative purposes, a standard for sentencing in respect of the crimes that a person such as the appellant has committed? I pointed out this morning the anomaly about how this matter could have been dealt with summarily, yet 4K(4) would prevent it being dealt with summarily if 4K(4) was otherwise applicable.
The next matter I want to refer to in that list is what the Australian Law Reform Commission Report No 44 in 1988 said. Your Honours, I think, have been provided with that, or will be. In paragraph 155, there was a recommendation of:
The need for consistency in all aspects of the criminal justice system . . . It applies particularly to the sentencing hearing . . . Consistency is a basic requirement of justice.
Paragraph 161:
The essential attribute of a system designed to promote consistency in sentencing is the ability to compare one case with another.
KIRBY J: You will remember Mr Solicitor said, well, there are two forms of consistency. One is consistency across the nation, another is consistency within the prison walls, where you will be mostly mixing with State offenders who have been dealt with in a particular way.
MR GRACE: Take this case as an example – offences against the Bankruptcy Act. Where is the like State offender? There is no such “like” State offender.
GLEESON CJ: But many federal offenders are also State offenders. In drug offences, as you know, people are commonly charged with possession and trafficking and importation.
MR GRACE: Yes, but not so commonly convicted of both, because the prosecution authorities usually take a particular course, that is, particularly in those States which provide for majority verdicts in respect of State offences, to drop the State offence, and the matter proceeds by way of trial before a jury, because there are different issues concerning majority verdicts and unanimous verdicts, depending on State or Commonwealth jurisdiction being applied. So, in practice, although what your Honour says is correct, in reality, by the time of trial, it is not so common. But it has been the case in the past.
KIRBY J: We were told there is a specific provision in the Crimes Act dealing with that overlap between federal and State offences.
MR GRACE: Yes, there is, for the dates of commencement of each of the State and Commonwealth offences, if sentence is imposed at the same time. There is that provision.
KIRBY J: So Federal Parliament has addressed itself to that particular problem?
MR GRACE: Yes. The final point I wanted to make is to emphasise the fact that section 16A(1) is a law that “otherwise provides”, within the meaning of those words contained within section 79 of the Judiciary Act. Similarly, in respect of section 68(1).
GLEESON CJ: Well, it cannot “otherwise provide” in the sense that it is antithetical to aggregate sentencing. Otherwise, it is repugnant to section 4K.
MR GRACE: If I could add this qualification: in respect of matters on indictment. If, in respect of matters on indictment, it is not repugnant to 4K(4). Similarly, section 68(1), to the similar effect.
The final point I wanted to make is just a matter of clarification. Your Honour Justice Gummow this morning raised the issue of section 68(7). That is qualified in its operation by section 68(10). Those are the matters.
GLEESON CJ: Thank you. We will reserve our decision in this matter and we will adjourn for a short time to reconstitute.
AT 3.05 PM THE MATTER WAS ADJOURNED
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