R v Ironside - [2009] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IRONSIDE
[2009] SASC 151
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Kourakis)
3 June 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
Wife of appellant died days after suffering head injuries – appellant charged with manslaughter and pleaded not guilty – convicted in District Court after trial by jury – verdict implied that jury rejected exculpatory version of events appellant gave to police and in evidence at trial – manslaughter a ‘serious offence against the person’ for the purposes of s 32(5)(ba) Criminal Law (Sentencing) Act 1988 (SA) (‘the Act’) – appellant fell to be sentenced under the mandatory minimum non-parole period regime created by s 32A of the Act – sentencing Judge proceeded on the basis that no ‘special reasons’ existed to enliven power under s 32A(2)(b) of the Act to fix non-parole period shorter than the minimum proportion of head sentence specified by the Act – whether cooperation of appellant with police gave rise to ‘special reasons’.
Held: proportion of head sentence fixed by the Act as minimum non-parole period applicable to a person convicted of a ‘serious offence against the person’ to be treated as a benchmark representing the non-parole period appropriate for a person convicted of an offence at the lower end of the range of objective seriousness for offences of that type – in order to determine whether a non-parole period equal to, longer or shorter than that prescribed is warranted, sentencing Judge must compare the non-parole period appropriate in the particular case, arrived at having regard to the factors set out in s 32A(2), with the benchmark – cooperation of appellant not such as to give rise to ‘special reasons’ – appeal dismissed.

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE - NATURE AND EXTENT OF JUDICIAL POWER - CONFERRAL ON STATE COURTS
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION - RIGHTS AND FREEDOMS IMPLIED IN COMMONWEALTH CONSTITUTION - OTHER RIGHTS AND FREEDOMS
Power of a court to fix a non-parole period shorter than the mandatory minimum arises only when ‘special reasons’ exist – in determining whether ‘special reasons’ exist, the court can have regard only to the matters set out in s 32A(3) of the Act – one of the matters specified in s 32A(3) of the Act is the fact of a plea of guilty and the circumstances surrounding the plea – whether s 32A(3) of the Act requires the court to discriminate between offenders in a manner that impairs the court’s institutional integrity such that it is Constitutionally invalid.
Held: process to be undertaken by a court in fixing non-parole period in accordance with the process specified by the Act not foreign or inimical to the exercise of judicial power – cannot be said that process is not an appropriate one for a court to undertake – discrimination involves unequal treatment of equals – a plea of guilty and its surrounding circumstances is a factor which can provide a material and appropriate distinction warranting differential treatment of offenders in sentencing – provisions of the Act not discriminatory – relevant provisions of the Act not invalid – appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(g), s 10(1)(h), s 10(1a), s 32(1)(a), s 32(1)(b), s 32(5)(a), s 32(5)(ab), s 32(5)(ba), s 32(5)(c), s 32(10)(d), s 32A(1), s 32A(2), s 32A(2)(a), s 32A(2)(b), s 32A(3), s 32A(3)(b), s 32A(3)(c); Australian Constitution Chapter III, s 80, s 120; Judiciary Act 1903 (Cth) s 78B, s 79, s 80; Criminal Law Consolidation Act 1935 (SA) s 13, s 14, s 284; Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) s 11; Commonwealth Places (Application of Laws) Act 1970 (Cth); Acts Interpretation Act 1915 (SA) s 22(1); Summary Procedure Act 1921 (SA) s 5; National Service Act 1951 (Cth) s 49(2); Criminal Law (Legal Representation) Act 2001 (SA) s 8, referred to.
R v Miller (2000) 76 SASR 151; R v Beauregard-Smith (2001) 79 SASR 408; Castlemaine Tooheys Ltd v The State of South Australia (1989-1990) 169 CLR 436, applied.
Palling v Corfield (1970) 123 CLR 52; Cameron v The Queen (2002) 209 CLR 339; K-Generation Pty Ltd v Liquor Licensing Court (2009) 83 ALJR 327; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Brown v The Queen (1985-1986) 160 CLR 171; Leeth v The Commonwealth of Australia (1991-1992) 174 CLR 455; R v Banens (unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Legoe and von Doussa JJ, 18 November 1987); R v Lennon (2003) 86 SASR 295, discussed.
Kable v The Director of Public Prosecutions for the State of New South Wales (1995-1996) 189 CLR 51; Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; The Wik Peoples v The State of Queensland (1996) 187 CLR 1; Baker v The Queen (2004) 223 CLR 513; The Commonwealth of Australia v The State of Queensland (1975) 134 CLR 298; The Queen v Shannon (1979) 21 SASR 442; Wong v The Queen (2001) 207 CLR 584; The Queen v Kirby; Ex parte Boilermakers’ Society of Australia (1955-1956) 94 CLR 254; Re Tracey; Ex parte Ryan (1988-1989) 166 CLR 518; Lowe v The Queen (1984) 154 CLR 606; Lloyd v Snooks (1999) 9 Tas R 41; Wynbyne v Marshall (1997) 117 NTR 11; Sweedman v Transport Accident Commission (2006) 226 CLR 362; John Pfieffer Pty Ltd v Rogerson (2000) 203 CLR 503; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; Blunden v The Commonwealth (2003) 218 CLR 330; The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254; R v Matthews [2008] SASC 259; Foley v Police [2008] SASC 338, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"co-operation", "co-operated"

R v IRONSIDE
[2009] SASC 151
Court of Criminal Appeal: Doyle CJ, Gray and Kourakis JJ

DOYLE CJ: After a trial before a jury in the District Court, Mr Ironside was convicted of the offence of manslaughter. The victim was his wife. The District Court Judge sentenced Mr Ironside to imprisonment for six years three months. He fixed a non-parole period of five years.
Mr Ironside appeals against that sentence. A Judge of this Court granted permission to appeal.
Mr Tokley, counsel for Mr Ironside on appeal, submits that the sentence is excessive. In particular, he submits that the Judge failed to make proper allowance for co-operation by Mr Ironside in the investigation of the offence, and at later stages of the proceedings.
Manslaughter is a “serious offence against the person” for the purposes of s 32 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”). Accordingly, by s 32(5)(ba) the mandatory minimum non-parole period prescribed in respect of the offence of manslaughter is four-fifths the length of the head sentence. The non-parole period that the Judge fixed is four-fifths the length of the head sentence.
No submission was put to the District Court Judge that, in the circumstances, s 32A(2)(b) of the Act operated to authorise or require the Judge to fix a shorter non-parole period. Nevertheless, Mr Tokley now submits that the Judge could and should have fixed a shorter non-parole period. He relies in particular on a submission that Mr Ironside co-operated in the investigation and prosecution of the offence. That submission was not put to the Judge.
Mr Tokley further submits that s 32A of the Act is invalid by operation of the provisions of Chapter III of the Constitution of the Commonwealth of Australia. He submits that s 32A(3) “… results in an impairment of the institutional integrity of the court, or is incompatible with ‘its role as a repository of federal jurisdiction’”. This submission is based on the High Court decision in Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1995-1996) 189 CLR 51, as explained in later decisions of the High Court.
Notice of this submission was given under s 78B of the Judiciary Act 1903 (Cth). The Attorney-General for the State of South Australia intervened to put submissions in support of the validity of the provisions. No other Attorney-General wished to intervene.
The offending conduct and the sentence
Mrs Ironside died from a subdural haemorrhage caused by two injuries to her head. The Judge was not able to make a finding as to how the injuries were caused. The Judge said that Mr Ironside might have pushed his wife, causing her to fall and strike her head. Alternatively, he might have struck her head. The jury’s verdict meant that the jury was satisfied that the injury was deliberate. The Judge accepted that the force used was moderate.
Mr Ironside maintained throughout that the injury was an accident. The jury must have rejected that explanation.
The Judge sentenced Mr Ironside on the basis that the injury to Mrs Ironside was not an isolated act. It occurred against a background of Mr Ironside assaulting his wife on other occasions.
The Judge said that an aggravating circumstance was Mr Ironside’s failure to call for medical help after the injury was inflicted, in circumstances in which Mr Ironside knew that his wife was badly injured. The Judge found that the injures were inflicted about 5.00 pm on 30 September 2002. Mr Ironside did not call an ambulance until about 2.00 am the next day.
Mr Ironside was 72 years of age. His general health was not good. He had a number of convictions extending back to 1984. A number were for drink driving offences. One was for an assault.
The Judge accepted that Mr Ironside was unlikely to offend again. The Judge noted that Mrs Ironside was only 150 centimetres tall and weighed about 39 kilograms. She was a vulnerable person, being so small and so lightly built. The Judge said that general deterrence as well as personal deterrence called for a substantial penalty. He treated the delay in calling an ambulance, and the background of domestic violence, as aggravating circumstances.
Submissions on appeal as to the circumstances of offending and as to the head sentence
Mr Tokley submits that the delay in calling an ambulance could not be an aggravating circumstance. He submits that this conduct (or inaction) amounted to the offence of criminal neglect contrary to s 14 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) and must be charged as such if it was to be taken into account. As it amounted to a separate offence, it could not be treated as an aggravating circumstance.
I am by no means convinced that the delay in calling an ambulance could give rise to an offence under s 14 of the CLCA. But even if Mr Tokley’s submission on this point is accepted, manslaughter was the appropriate charge in the circumstances. A charge under s 14 was not the appropriate charge. To charge the offence of manslaughter and an offence under s 14 would, even if technically possible, rightly be seen as oppressive. In those circumstances it was appropriate for the Judge to have regard to Mr Ironside’s inaction after he inflicted the injury.
Mr Tokley also submits that Mr Ironside “co-operated in the investigation of the offence”, to use the words of s 10(1)(h) of the Act. Accordingly, he submits, the Judge should have treated the co-operation as a mitigating circumstance when considering the head sentence. I will deal separately with the relevance of this conduct to the non-parole period.
Mr Tokley points to a number of matters. Mr Ironside submitted to police questioning later in the day on which his wife was taken to hospital. He need not have done so. He did not ask for legal advice. He allowed the police to inspect his home where the injury was inflicted. He submitted to further questioning by the police some three years later. He provided a sample from which his DNA could be extracted.
Mr Tokley added matters such as the fact that Mr Ironside complied with his bail conditions, that he attended at his trial and that he agreed certain facts at the trial.
No submission was made to the District Court Judge that these matters amounted to co-operation for the purposes of s 10(1)(h) of the Act, and the Judge made no reference to these matters.
I accept that “co-operation” can extend to some of the matters identified by Mr Tokley. Each case will turn on its own facts.
But in the present case Mr Ironside maintained a version of events that the jury rejected. His “co-operation” in answering police questions and allowing access to his home must be assessed in that light. Also, as to the access to his home, the police could have obtained a warrant authorising them to enter and search the house, and that is a factor to be borne in mind. Some of the matters relied on, such as Mr Ironside’s observing his bail conditions and attending at trial, can hardly be called co-operation in a meaningful sense. It was his legal obligation to do these things.
In any event, when all of these matters are taken together, they are incapable of supporting an argument that they called for some reduction in the head sentence that the Judge passed. They were of no real significance at all. Had they been identified before the District Court Judge as matters supporting a reduction in sentence, the Judge would rightly have rejected that submission. I reject Mr Tokley’s submission on this point.
I consider the head sentence to be a moderate one in all of the circumstances. There is no error on the part of the Judge in arriving at the head sentence. It cannot be said to be excessive.
The fixing of the non-parole period
The Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) (“the 2007 Act”) amended the Act to prescribe a mandatory minimum non-parole period in respect of any offence that is “a serious offence against the person” as defined by s 32(10) of the Act. The offence of manslaughter is such an offence.
Section 32 of the Act regulates the fixing of a non-parole period.
The principles that govern the fixing of a non-parole period, other than in respect of a serious offence against the person, are well settled. In R v Miller [2000] SASC 16; (2000) 76 SASR 151, I summarised the position as follows:
[33]What is the purpose of a grant of parole? The High Court has considered this question on a number of occasions. While there have been some variations of emphasis, a fairly consistent view has been expressed in a line of decisions which includes Power v The Queen (1974) 131 CLR 623; Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 and R v Shrestha (1991) 173 CLR 48. In Shrestha, Deane, Dawson and Toohey JJ conveniently drew together the principles that can be found in these cases. They said (at 67):
"The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody."
Having identified the basic theory of the parole system, they said (at 68) that:
"… the parole system allows for a review of the offender's case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage. At the time of that review, the reviewing authority should have available to it up-to-date information about the prisoner's conduct while in custody, his current attitudes, his present circumstances and the prospects of his rehabilitation in the community if he be released on parole."
Having explained the operation of the system, they then referred to the manner in which the decision to fix a non-parole period (the decision to be made by me) and the decision to release a prisoner should be made. They said (at 68-69):
“The fact that considerations of mitigation and rehabilitation will ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question (for the sentencing judge) whether a convicted person should be eligible for release on parole at some future time or to the subsequent question (for the parole authority) whether the prisoner should be actually released. All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time. Thus, in Power v The Queen, Barwick CJ, Menzies, Stephen and Mason JJ drew attention to the fact that the legislative intent to be gathered from the terms of the parole legislation applicable in that case was to provide for possible mitigation of the punishment of the prisoner only when the stage is reached where ‘the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence’. This approach has been consistently accepted in subsequent cases in this Court. Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine, according to the circumstances which then exist, whether the offender should be released on parole. (References omitted.)"
I again reviewed the position in R v Beauregard-Smith [2001] SASC 69; (2001) 79 SASR 408 at [32]-[33] where I said:
[32]Next, as is established by the authorities, the fixation of a non-parole period requires the Court to consider whether the whole of the sentence of imprisonment imposed should be served in custody. It is not necessary to elaborate on the process involved. It suffices to refer to the summation of position by King CJ in R v Stewart (at 479):
"Having considered what is the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment I must then consider whether parole is appropriate on other grounds. That involves a consideration of the likelihood of the applicant responding to parole."
[33]This process differs from the process of fixing a head sentence. Nevertheless, as was said by Deane, Dawson and Toohey JJ in R v Shrestha (1991) 173 CLR 48 at 68-69:
“All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.”

The prescription of a mandatory minimum non-parole period in respect of a serious offence against the person requires a different approach.
Section 32(5)(ba) specifies or identifies the mandatory minimum non-parole period in respect of a serious offence against the person. It provides:
32 Duty of court to fix or extend non-parole periods
(5) The above provisions are subject to the following qualifications:
…
(ba) if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four‑fifths the length of the sentence;
The approach to be taken to the fixing of a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed is regulated by s 32A of the Act. That section provides as follows:
32A   Mandatory minimum non-parole periods and proportionality
(1)    If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.
(2)    In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—
(a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)    In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)the degree to which the offender has co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
(4)     This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act.
It is apparent from these provisions that the fixing of a non-parole period in respect of a serious offence against the person requires a different approach from that taken in fixing a non-parole period in respect of other offences.
The head sentence will be determined in the usual manner: s 10(1a) of the Act. The prescription of a mandatory minimum non-parole period is to have no effect on the fixing of a head sentence.
The court will then have to consider, in the usual way, whether the case is one of the exceptional cases in which, having regard to the provisions of s 32(5)(c), the court should decline to fix a non-parole period. Unless the court declines to fix a non-parole period, it will then turn to the provisions of s 32(5)(ba) and s 32A.
As Mr Hinton QC SG, who appeared for both the Director and the Attorney-General, submitted, taken together these provisions establish a benchmark or yardstick against which, or by reference to which, the length of a non-parole period is to be fixed.
The mandatory minimum non-parole period (which in each case will be four-fifths the length of the head sentence) has been specified by Parliament as the appropriate non-parole period for an offence of the relevant kind, the offence being “… at the lower end of the range of objective seriousness …” for offences of that kind.
So, in the present case, the prescribed period is four-fifths the length of the head sentence, namely, five years. That is to be taken as an appropriate non-parole period for an offence of manslaughter at the lower end of the range of objective seriousness: s 32A(1).
The court is required by s 32A(2) to consider whether the non-parole period that it proposes to fix should be equal to, or longer than or shorter than, the prescribed period. It does this by considering the circumstances identified by Parliament in s 32A(2). It then asks itself whether, bearing in mind that an offence of the relevant kind at the lower end of the range of objective seriousness warrants a non-parole period equal to the prescribed period, the particular offence calls for a non-parole period equal to, or longer or shorter than the prescribed period.
So, as I have said, the prescribed period is identified as a yardstick or benchmark. It is appropriate for an offence of the relevant kind at the lower end of the range of objective seriousness. Any aspects or circumstances of the particular offence that are referred to in s 32A(2) then have to be identified, and in light of those matters the particular offence has to be compared with the benchmark or yardstick, with a view to deciding whether the particular offence, in light of that comparison, warrants a non-parole period equal to, longer than or shorter than the prescribed period.
This is a difficult process.
To explain the difficulty, and the process involved, it is convenient to consider separately the question of whether the non-parole period should be longer than the prescribed period and the question of whether the non-parole period should be shorter than the prescribed period. In practice, a court will usually not approach the matter in this sequential fashion. But it is necessary to do so to identify the matters that have to be considered.
When considering the first of these questions a court must have regard to all of the circumstances that would be taken into account in fixing a non-parole period for an offence other than a serious offence against the person. The reference in s 32A(2)(a) to “objective or subjective factors affecting the relative seriousness of the offence” must be a reference to all of the objective and subjective circumstances that are usually considered in fixing a non-parole period. By considering all of these circumstances the court makes an assessment of the seriousness of the relevant offence, but with a view to fixing a non-parole period. I refer, without repetition, to the earlier citations on that point. But in the case of a serious offence against the person, the court, when considering the first question, does not go directly to the fixation of a non-parole period, but considers whether, in the light of all relevant circumstances, a non-parole period longer than the non-parole period appropriate for an offence at the lower end of the range of objective seriousness (ie the prescribed period) is called for.
Thus, the court must consider whether the “objective or subjective factors” call for a non-parole period longer than the prescribed period, bearing in mind that the prescribed period is appropriate for an offence at the lower end of the range of objective seriousness. Parliament clearly intends the fixing of a non‑parole period in respect of a serious offence against the person to be approached in this indirect fashion, and by reference to the statutory benchmark or yardstick.
The task of the court is a difficult one. The court has to compare the non‑parole period that is appropriate in the light of all relevant circumstances (the objective or subjective factors) with a non-parole period that is appropriate having regard only to the “objective seriousness” of an offence of a relevant kind at the lower end of the range of seriousness. As a matter of logic, the comparison is impossible, because one is not comparing like with like. One is comparing a putative or potential non-parole period arrived at on one basis (a consideration of all relevant circumstances) with a non-parole period identified by reference only to the objective circumstances or objective seriousness of the offence.
However, the process of sentencing is not an exercise in logic. When, as is sometimes necessary, a court considers the sentence that is appropriate for joint offenders, and takes into account their different circumstances, the court makes a comparison of an evaluative kind. It is not an exercise in logic. A similar process of evaluation is called for by s 32A, but is made more difficult by the fact that the comparison is between a putative non-parole period and a prescribed non‑parole period that are arrived at in the light of, and based on, different considerations. But this is what Parliament requires the court to do.
When considering whether a non-parole period shorter than the prescribed period is appropriate, the court must again bear in mind that the prescribed period is an appropriate non-parole period for an offence at the lower end of the range of objective seriousness.
Then the court must direct its attention to s 32A(2)(b) and to s 32A(3). The court can now consider only the matters referred to in s 32A(3).
If one or more of the matters identified in s 32A(3) is present, the court must then consider whether that matter or those matters call for a shorter non‑parole period than the prescribed period. Remembering that the prescribed period is an appropriate non-parole period for an offence of the relevant kind at the lower end of the range of objective seriousness, the court will ask itself whether the identified matters that are present call for a shorter non-parole period having regard to their mitigating effect, and the relevance of the identified matters to the fixing of a non-parole period.
Once again there is a difficulty in making the relevant comparison. One is not comparing like with like. The difficulty is increased by the fact that the court must engage in the unfamiliar task of arriving at a putative or possible non-parole period by reference only to the limited matters identified in s 32A(3), rather than by reference to all of the circumstances (subjective and objective) that would usually be relevant.
The power to fix a shorter non-parole period will be enlivened only if the matters identified in s 32A(3) that are present support a conclusion that a shorter non-parole period than the prescribed period is appropriate, bearing in mind that the prescribed period is appropriate for an offence at the lower end of the range of objective seriousness.
I return now to the circumstances of Mr Ironside.
In fixing the non-parole period the Judge said:
I impose a head sentence of six years and three months. S.32(ba) of the Criminal Law (Sentencing) Act requires that I impose a non-parole period which is four-fifths of that head sentence. None of the mitigating factors set out in s.32A of the Act applies to you so as to permit me to depart from that requirement. I therefore impose a non-parole period of five years’ imprisonment.
Mr Tokley submits that the Judge erred. He submits that the Judge should have found that Mr Ironside had co-operated in the investigation and prosecution of the offence with which he was charged, that the matters identified in s 32A(3)(c) were present, and that in the circumstances they amounted to special reasons for fixing a non-parole period shorter than the mandatory minimum non-parole period. I mention here that I consider that “special reasons” must mean sufficient reasons. I do not consider that “special reasons” should be read as requiring not only the presence of one or more of the identified matters, but also that there be something exceptional or out of the ordinary about the case.
As I have already noted, the Judge did not consider this submission because no such submission was made to him. Had the submission been put, the circumstances would have been canvassed before the Judge in a manner that might have been helpful. This Court must now do the best it can.
There is no reason to give a narrow meaning to the reference in s 32A(3)(c) to co-operation by the offender. I accept that the words used are to be given their ordinary meaning. I accept, as I said earlier in these reasons, that some of the matters identified by Mr Tokley can be treated as co-operation by Mr Ironside in the investigation of the offence. I will not repeat what I said earlier.
However, I am firmly of the opinion that the co-operation by Mr Ironside, such as it was, was not a sufficient reason or “special reasons” for fixing a non‑parole period shorter than the prescribed period.
Mr Ironside’s offence is towards the lower end of the range of objective seriousness for offences of manslaughter, but I would not put it at the lower end. If a non-parole period of five years (the prescribed period) is the appropriate non‑parole period for an offence of manslaughter at the lower end of the range of objective seriousness for manslaughter, the co-operation on the part of Mr Ironside is not a circumstance supporting the fixing of a shorter non-parole period than the prescribed period. I regard the co-operation on Mr Ironside’s part as being of little significance and of little substance. To put it plainly, in the present case there is no circumstance calling for a non-parole period shorter than the non-parole period appropriate for an offence at the lower end of the range of objective seriousness.
I reject the submission that the Judge erred in failing to fix a shorter non‑parole period than he did.
The Judge should have considered whether a non-parole period longer than the prescribed period was warranted. However, it is understandable that he did not do so, no such submission having been made to him. If there was an error on the part of the Judge in this respect, it could not have worked to Mr Ironside’s disadvantage.
For those reasons, subject to a consideration of the submission that some or all of the provisions under consideration are invalid, I would dismiss the appeal.
Submissions on the issue of invalidity
Mr Tokley submits that s 32A(3) of the Act is invalid. He argues that a court can fix a non-parole period shorter than the mandatory non-parole period only if “special reasons exist”, and that this provision “results in an impairment of the institutional integrity of the court”, and further or alternatively is incompatible with the court being a repository of federal jurisdiction.
The reason, he argues, is that a convicted person should not be discriminated against in relation to the determination of a head sentence or the fixing of a non-parole period on the ground that the convicted person has chosen to exercise the right to plead not guilty and to be tried. He submits that the court cannot be the vehicle by which a convicted person is, in that sense, treated unequally. He submits that if the only “special reason” available to a person is to plead guilty to the offence, and the person does not do so, then the effect of s 32A is that the person loses the opportunity to argue for a non-parole period shorter than the mandatory minimum non-parole period relying on the plea of guilty. He submits that s 32A(3) is discriminatory because, all other things being equal, a person who pleads guilty is likely to receive a lesser sentence and a lesser non-parole period than a person who does not. He applies the same argument in relation to co-operation on the part of the offender in the investigation or prosecution of the offence.
I do not agree with this submission for the reasons that follow.
It is desirable to begin by returning to the relevant provisions of the Act.
When a court sentences a person to imprisonment, ordinarily the court must fix a non-parole period or revise and extend an existing non-parole period: s 32(1)(a) and s 32(1)(b) of the Act.
The court cannot fix a non-parole period if the total period of imprisonment is less than one year: s 32(5)(a). The court may decline to fix a non-parole period in circumstances specified in s 32(5)(c) of the Act.
When fixing a non-parole period, ordinarily the court will proceed in the manner outlined in Miller and in Beauregard-Smith (above).
The 2007 Act, as I have already noted, introduced a change to the legislative scheme for the fixing of a non-parole period. The 2007 Act introduced the following provisions into s 32(5):
(5)     The above provisions are subject to the following qualifications:
…
(ab)   if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;
…
(ba)   if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four‑fifths the length of the sentence;
…
A “serious offence against the person” is defined in s 32(10)(d) of the Act as follows:
(10)    For the purposes of this section –
…
(d)     a serious offence against the person means -
(i)a major indictable offence (other than an offence of murder) that results in the death of the victim or the victim suffering total incapacity; or
(ii)    a conspiracy to commit an offence referred to in subparagraph (i); or
(iii)aiding, abetting, counselling or procuring the commission of an offence referred to in subparagraph (i);
…
The provisions of s 32A (set out earlier in these reasons) govern the application or effect of the specification of a mandatory minimum non-parole period in s 32(5)(ab) and s 32(5)(ba). Under s 32A it is for the sentencing court to decide whether the non-parole period will be shorter than, longer than, or equal to, the mandatory minimum non-parole period. It is the court that fixes the non-parole period, but under s 32A it does so by reference to the mandatory minimum non-parole period. The provisions in s 32A(2), supplemented by s 32A(3), regulate how the court makes that decision. I have explained earlier in my reasons how these provisions operate.
When applying these provisions in a particular case, the court will make findings of fact in the usual way, will apply the statutory provisions to the facts as found, and then will make an evaluative judgment in the usual way, although now constrained by the provisions of s 32A.
While the provisions referred to govern the approach to the fixing of a non-parole period, and the provisions of s 32A impose constraints on a court that do not exist when fixing a non-parole period not affected by s 32A, the provisions inserted by the 2007 Act do not dictate the outcome of the process, nor determine what the non-parole period will be in a particular case. That remains the responsibility of the court. As I have already said, in cases affected by s 32(5)(ab) and s 32(5)(ba), the court fixes the non-parole period, but does so using the mandatory minimum non-parole period as a benchmark, and within the constraints set by s 32A.
It is relevant to bear in mind, when considering these matters, that if Parliament had chosen to provide that in relation to offences of a certain kind, the non-parole period should be a specified proportion of the head sentence, the court having no power to change that specified proportion, there could be no complaint about the validity of Parliament doing so. One must be careful to avoid proceeding on the misconception that Parliament may not fix the non-parole period, or the proportion to be borne by the non-parole period to the head sentence, in relation to particular offences. In Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52 Barwick CJ said at 58:
It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it may lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded: nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute. Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose specific punishment. If Parliament chooses to deny the court such a discretion, and to impose such a duty, as I have mentioned the court must obey the statute in this respect assuming its validity in other respects. It is not, in my opinion, a breach of the Constitution not to confide any discretion to the court as to the penalty to be imposed.
Other members of the Court agreed on this point: Menzies J at 64-65; Windeyer J at 65; Owen J at 67; Walsh J at 68; Gibbs J at 70.

Whatever one might think about the complexity of the process required by the 2007 Act, and whatever one might think about the utility of constraining the ability of the court to fix what it considers to be an appropriate non-parole period in the light of all the circumstances (and this is a matter that has been resolved by Parliament by enacting the 2007 Act) there is nothing about the task of a sentencing court under these provisions that is foreign or inimical to the exercise of judicial power. Nor is there anything about the task of the court that could cause one to say that the task is not one appropriate for a court.
Mr Tokley did not submit to the contrary, but it is desirable to clear away these issues at the outset.
Mr Tokley correctly submits that the effect of s 32A(3) is that an offender who pleads not guilty, and is convicted after a trial, will not be able to rely on s 32A(3)(b) to support an argument for a non-parole period shorter than the minimum non-parole period. It does not follow that the non-parole period will be equal to the mandatory minimum non-parole period. Aspects of the particular case might result in the court fixing a non-parole period longer or shorter than the mandatory minimum non-parole period.
But in my opinion, in this respect the offender postulated by Mr Tokley is in no different position than the offender was in relation to the fixing of the appropriate head sentence. Nor is the offender postulated by Mr Tokley in a position that relevantly differs from that of an offender whose non-parole period is to be fixed without regard to the provisions inserted by the 2007 Act.
When a head sentence is fixed, an offender who pleaded not guilty cannot get the reduction in the head sentence which might have been given if the offender pleaded guilty. I say “might have been given” because whether a reduction is granted, and the extent of that reduction, depend on the circumstances of the plea of guilty (including the stage of the proceedings at which it was entered) and other factors that are part of the sentencing process. It is well established that the circumstance that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of the sentence. There is no need to cite authority for that proposition.
The basis upon which this is done was summarised by Gaudron, Gummow and Callinan JJ in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 at [14]-[15] where they said:
[14]Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.
[15]This treatment of the matter is consistent with what in their joint judgment in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478-479 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.
Footnote omitted
I will return to this point a little later, but at this stage I make the point that Cameron was a case involving the exercise of Federal jurisdiction, because the Court was applying State law made applicable by the provisions of the Commonwealth Places (Application of Laws) Act 1970 (Cth).
It is not necessary on this occasion to examine in any greater detail the way in which a plea of guilty operates as a mitigating circumstance. It suffices to say that an offender who pleads not guilty will not be able to claim a reduction in the appropriate head sentence that otherwise might have been made on account of the plea of guilty. If, in a particular case, there is no other mitigating circumstance of any significance, the only basis for a reduction in a sentence, namely, a plea of guilty, will be unavailable to the offender in question.
If there is no relevant difference, in this respect, between deciding on the head sentence for an offender who pleads not guilty, and fixing a non‑parole period for a person who pleads not guilty, then that would suggest that the provisions introduced by the 2007 Act could not be invalid. First, because it cannot be said that the different treatment accorded in determining the head sentence for a convicted person who pleads guilty, and one who pleads not guilty, is impermissible in law. If this is so, why would the same difference in treatment, but now in relation to fixing a non-parole period, be impermissible? Second, because the different treatment of an offender who pleads guilty and an offender who pleads not guilty is justified by the significance of the plea of guilty.
I agree with Mr Tokley that there is a difference between deciding on a head sentence for an offender, and fixing a non‑parole period in relation to an offender who has been convicted of a serious offence against the person.
In the former case, except for the case of murder (for which the head sentence is mandated as life imprisonment) the court must arrive at an appropriate head sentence having regard to all relevant circumstances: see s 10(1) of the Act.
In the latter case, as the case is affected by the 2007 Act, Parliament has established what I have called a benchmark, by reference to which the court must fix a non‑parole period. Parliament has also limited the range of matters that the court can consider, at least when the court is deciding whether the non‑parole period should be shorter than the mandatory minimum non‑parole period. But it remains the case that the court will determine what the non‑parole period is.
The fact of a plea of guilty, in light of the circumstances of the plea, can be called a gateway to or qualifying fact for a non‑parole period shorter than the mandatory minimum non‑parole period. If there has been a plea of guilty that circumstance will also be taken into account in deciding whether the non‑parole period should be shorter than the mandatory minimum non‑parole period, provided that the court considers that the plea of guilty and the circumstances surrounding the plea amount to “special reasons”.
But, accepting the differences that I have identified between arriving at an appropriate head sentence, and fixing a non‑parole period under the provisions of the 2007 Act, I consider that there is no material difference bearing on the relevance of, and use made of, a plea of guilty in light of its surrounding circumstances. In each case the plea of guilty has the capacity to provide a basis for a reduction in the head sentence or non‑parole period, although the plea of guilty and its surrounding circumstances fall to be considered in a different way in each situation. Nor is there any relevant difference in the treatment of a convicted person who pleaded not guilty.
That being so, and bearing in mind the well-established principle that a plea of guilty may be a mitigating circumstance, I do not agree that the provisions of the 2007 Act involve or contain invalidating elements. A short answer to Mr Tokley’s submission is that in fixing a non-parole period there is no discrimination under the provisions of the 2007 Act between an offender who pleads guilty and one who pleads not guilty by reference to a distinction that is irrelevant, or by reference to the treatment of a distinction that is not appropriate. It is important to bear in mind, and in my opinion Mr Tokley’s submission overlooks this matter, that the whole concept of discrimination involves the idea of the unequal treatment of equals. I refer, without repeating them, to the observations of Gaudron, Gummow and Callinan JJ in Cameron v The Queen at [15], which are set out above. In that passage they refer to the reasons of Gaudron and McHugh JJ in Castlemaine Tooheys Ltd v The State of South Australia [1990] HCA 1; (1989-1990) 169 CLR 436 at 478-479 where those Judges said:
In Street v Queensland Bar Association (1989) 168 CLR 461, at pp 569-574, Gaudron J made reference to the general considerations which, statute aside, result in particular treatment being identified as discriminatory. By reference to those considerations it is possible to identify the general features of a discriminatory law. A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference, or, in other words, if it treats equally things that are unequal -- unless, perhaps, there is no practical basis for differentiation.
In the present case, the distinction between an offender who has pleaded guilty and an offender who has pleaded not guilty is a material one. The distinction is the plea of guilty and its surrounding circumstances, by which I mean the considerations identified by Gaudron, Gummow and Callinan JJ in Cameron v The Queen at [14]-[15] (above). To the extent that a convicted person who pleaded guilty is treated differently from a convicted person who pleaded not guilty, the difference of treatment or the “differential treatment” is based on a material and appropriate distinction.
Before concluding my consideration of Mr Tokley’s submissions, I should refer to the principles on which he based his submission.
Mr Tokley founded his argument on the decision in Kable. That decision has been considered on a number of occasions by the High Court. For present purposes it suffices to refer to some of the more recent statements of the relevant principle.
In K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 83 ALJR 327, the most recent case on point, a number of references were made to Kable. French CJ said at [88]-[90]:
[88]The Parliament of the Commonwealth must, of course, take the courts of the States as it finds them. There is, consistently with the constitutional scheme for the exercise of the judicial power of the Commonwealth, a degree of institutional and procedural flexibility on the part of the parliaments of the States, which may travel beyond the limits permissible in federal courts created by the Parliament. That flexibility does not extend to conferring powers on State courts which are “repugnant to or incompatible with the exercise of the judicial power of the Commonwealth”. Incompatibility with institutional integrity may exist where a power or function conferred upon a court is “apt or likely … to undermine public confidence in the courts exercising that power or function”.
[89]In Forge v Australian Securities and Investments Commission in the joint judgment of Gummow, Hayne and Crennan JJ, their Honours referred back to Kable and identified the “relevant principle” emerging from it and authorities which came after it, in the following terms:
But as is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to “institutional integrity” alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.
[90]It is important to bear in mind, as Gummow J pointed out in Fardon that the principle derived from Kable is a constitutional doctrine not framed in terms apt to dictate future outcomes:
Reflection upon the range of human affairs, the scope of executive and legislative activity, and the necessity for close analysis of complex and varied statutory schemes will indicate that this may be a strength rather than a weakness of constitutional doctrine.
The question whether functions, powers or duties cast upon a court are incompatible with its institutional integrity as a court will be answered by an evaluative process which may require consideration of a number of factors. The evaluation process required is not unlike that involved in deciding whether a body can be said to be exercising judicial power.
Footnotes omitted
Gummow, Hayne, Heydon, Crennan and Keifel JJ said at [111]-[112]:
[111]However, the appellants rely upon the principle identified with the decision in Kable v Director of Public Prosecutions (NSW). They contend that the effect of s 28A of the Act is to deprive the Licensing Court of the reality or appearance of independence or impartiality that is essential to its position as the object of an exercise of power by the Parliament manifested in s 39(2) of the Judiciary Act. It was said in the joint judgment of McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ in North Australian Aboriginal Legal Aid Service Inc v Bradley that to be capable of exercising judicial power of the Commonwealth a court must be, and appear to be, an independent and impartial tribunal. …
[112]On that formulation of the issues in this Court, the subject of debate would be the discernment of the relevant minimum characteristics of an independent and impartial Licensing Court. Their Honours in Bradley said that “[n]o exhaustive statement of what constitutes that minimum in all cases is possible”.
Footnotes omitted
Kirby J summarised the principle as follows at [256]:
[256]Since Kable, no other case has been found by this Court to attract the application of the principle. This may be partly because, from the outset, the judges in the majority in Kable recognised that successful invocations of the principle would be extremely rare. It may partly be so because elected governments and parliaments in Australia rarely depart from such basic norms in the legislative deployment of judges and the courts. Whatever the explanation, the engagement of the Kable principle is clearly reserved to attempts by legislation to impose upon courts functions that are seriously repugnant to, or incompatible with, the institutional independence and integrity of such courts. …
Footnotes omitted
A helpful summary of the principle is also to be found in Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45. There Gleeson CJ said at [41]:
[41]It follows from the terms of Ch III that State Supreme Courts must continue to answer the description of "courts". For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality. That is a stable principle, founded on the text of the Constitution. It is the principle that governs the outcome of the present case. If State legislation attempted to alter the character of a State Supreme Court in such a manner that it no longer satisfied those minimum requirements, then the legislation would be contrary to Ch III and invalid. …
Gummow, Hayne and Crennan JJ said at [63]-[64]:
[63]But as is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a "court", or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to "institutional integrity" alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.
[64]It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so. An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal.
Footnotes omitted
See also Kirby J at [195] and Heydon J at [245].
I have considered these statements of the relevant principle. I have been mindful of the point made by Gummow J in Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 at [104] to the effect that the Kable principle is not one framed in terms that will dictate future outcomes. It is a broad principle that must be applied with care and with careful consideration of the circumstances to which it is applied.
As I have indicated earlier in my reasons, the 2007 Act does not confer on a court powers or functions that are repugnant to or incompatible with the exercise of judicial power. Nor, in my opinion, do the restraints imposed on a court by the 2007 Act in any way deny the reality or appearance of independence and impartiality on the part of any court called upon to apply the provisions of the 2007 Act. Subject to the question of discriminatory legislation, there is nothing in the provisions of the 2007 Act which, to my mind, impairs the institutional integrity of the courts of this State.
Mr Tokley’s submissions were based on a principle that a State court cannot be required by State legislation to act in a discriminatory manner. His submission was that the provisions of the 2007 Act in relation to the fixing of a non-parole period were discriminatory in relation to a person who has pleaded not guilty but has been convicted. That submission was advanced without elaboration of the underlying notion of discrimination that was deployed. I have explained why I consider that there is no discrimination of a kind that is relevant, basing my approach on a comparison with the approach taken to the determination of head sentence.
The principle that Mr Tokley invokes is canvassed in Cameron. I set out earlier a passage from the reasons of Gaudron, Gummow and Callinan JJ in Cameron. It appears implicit in that part of their reasons that had the relevant provisions been discriminatory, in the sense explained by them, the law might have been invalid. However, as I remarked earlier in these reasons, Cameron is a case concerned with the exercise of Federal jurisdiction. The laws of Western Australia were made applicable to the circumstances of the case by Commonwealth legislation. It is not necessary to decide the matter, but the principle invoked in Cameron, to the extent that it goes to the validity of legislation, might be limited to Commonwealth laws and to laws applied in the exercise of Federal jurisdiction. McHugh J was in dissent in Cameron.He referred to the question, canvassed in Cameron, of whether a reduction in sentence should be made for a plea of guilty, solely on the basis that a plea of guilty spares the State the expense of a trial, and spares the witnesses trouble and inconvenience. This is the so‑called utilitarian aspect of a plea of guilty. It was in that context that he said at [44]:
[44]It is, however, one thing for courts, exercising State jurisdiction, to give a discount for a bare plea of guilty even though it results in persons who plead guilty receiving shorter sentences than persons in similar circumstances who plead not guilty. But it is another matter whether, consistently with the exercise of the judicial power of the Commonwealth, courts exercising federal jurisdiction can give "discounts" in such cases. If there is one principle that lies at the heart of the judicial power of the Commonwealth, it is that courts, exercising federal jurisdiction, cannot act in a way that is relevantly discriminatory. To deny that proposition is to deny that equal justice under the law is one of the central concerns of the judicial power of the Commonwealth. And it is at least arguable that it is relevantly discriminatory to treat convicted persons differently when the only difference in their circumstances is that one group has been convicted on pleas of guilty and the other group has been convicted after pleas of not guilty. As Gaudron, Gummow and Hayne JJ pointed out in Wong v The Queen:
"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." (Emphasis in original.)
Footnotes omitted
As can be seen, McHugh J linked the principle to the exercise of the judicial power of the Commonwealth. This is a matter for the High Court to resolve.

I should add, in the interests of clarity, that I accept that there is a common law principle that an offender should not be penalised for pleading not guilty. The existence of that principle is not in doubt. Equally, I accept that State legislation regulating the sentencing of offenders is to be interpreted in the light of that principle.
However, it is another thing to say that the Parliament of a State could not validly legislate to provide, for example, that an offender who pleads not guilty shall, if convicted, receive a heavier sentence than an offender who, in like circumstances in all respects, has pleaded guilty. It is not necessary to decide the point. I refer to the matter because underlying Mr Tokley’s submissions was an assumption that a State law to this effect would not be valid. Properly understood, the provisions of the 2007 Act do not so provide, and do not operate in a manner that might raise the question of validity. But I wish to make it clear that I have not assumed that a State law of the postulated kind would be beyond the legislative power of the Parliament of a State. No submissions were directed to this point, and it is a matter for another day.
For all those reasons, I would reject the challenge to the validity of the provisions introduced by the 2007 Act.
Conclusion
The appeal against sentence should be dismissed.
GRAY J.
This is an appeal against sentence.
The defendant and appellant, Ronald Robert Ironside was charged with the offence of manslaughter. The particulars were that between 29 September and 5 October 2002 the defendant unlawfully killed May Ironside. The deceased was the spouse of the defendant.
On 20 May 2008, following a trial before a Judge and jury in the District Court, the defendant was found guilty of the crime of manslaughter. The verdict was unanimous. The trial Judge sentenced the defendant to imprisonment for six years and three months. He fixed a non‑parole period of five years. It is to be observed that the non‑parole period is four fifths of the head sentence.[1]
[1] When sentencing, the Judge said:
I impose a head sentence of six years and three months. S.32(ba) of the Criminal Law (Sentencing) Act requires that I impose a non-parole period which is four-fifths of that head sentence. None of the mitigating factors set out in s.32A of the Act applies to you so as to permit me to depart from that requirement. I therefore impose a non-parole period of five years imprisonment.
The defendant appeals with permission on three grounds; that the sentence is manifestly excessive in respect of the head sentence and the non-parole period;[2] that the sentencing Judge erred in determining that the defendant was required to serve four fifths of the head sentence pursuant to section 32(5)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) and erred in determining that none of the mitigating factors set out in section 32A of Sentencing Act applied to the defendant.
[2] In granting permission on this ground the Court observed:
Leave for permission to appeal is granted in relation to that portion of ground 1, which relates to the complaint that the non-parole period is manifestly excessive, and that is granted only insofar as it is relevant to grounds 4 and 5 which complain that the learned sentencing judge did not take into account a matter which he could have and should have in relation to that section.
This appeal raises for consideration recent amendments to the Sentencing Act and in particular the construction of provisions with respect to mandatory minimum non-parole periods. Before coming to discuss the constitutional implications of the defendant’s submissions and the construction questions that arise, I propose to set out the circumstances of the defendant’s offending and to summarise the approach and reasons of the Judge for the sentence imposed.
The defendant and his wife, the deceased and victim of the offence, had been married for almost 40 years. The deceased was of a slight build and only weighed 39 kilograms. The deceased died as a result of a subdural haemorrhage caused by injuries to her head. Although the cause of the fatal injuries was not entirely clear, they resulted either from the defendant pushing the deceased so that she fell and suffered the injuries, or alternatively as a result of the defendant striking the deceased about the head. The defence case that the deceased had fallen accidentally was rejected by the jury. A neuropathologist expressed the opinion that if the head injuries had been caused by a blow or blows to the head, those blows need not have been severe. A mild or moderate blow or blows could have caused the injury. As the sentencing Judge observed, whatever the cause, the jury’s verdict could only mean that the actions which caused the injuries were the defendant’s actions and that they were deliberate.
When the deceased was taken to hospital it was noted that her body was covered in bruises. The Judge sentenced the defendant on the basis that the defendant had been responsible for the bruising to his wife’s body. Evidence led at trial suggested that the defendant had been abusing his wife during the six months preceding her death. The Judge took the view that the offence was aggravated by the defendant’s failure to promptly call for medical help, after it must have become evident that his wife was badly injured by his conduct. There was a delay of some nine hours between the infliction of the fatal injuries and an ambulance being called. The Judge rejected the defendant’s assertion that his wife had been reluctant for help to be called.
At the time of sentencing, the defendant was aged 72 years. References speaking well of the defendant were tendered. The defendant had been a successful furniture maker. When aged about 50, the defendant’s business failed and he suffered a nervous breakdown. Since that time, the defendant has suffered from a history of ill health, including anxiety and depression, chronic duodenal ulcer disease, back and neck problems as well as a number of other physical ailments. Reports from medical practitioners were tendered, confirming the general poor state of health of the defendant.
The defendant’s treating psychiatrist provided details of a history of depression and suicidal tendencies. The psychiatrist was concerned with the effects of imprisonment upon the defendant. His general practitioner considered that imprisonment would exacerbate an anxiety depressive condition and that there would be problems in managing chronic pain. A forensic psychologist provided a report addressing the level of anxiety and distress experienced by the defendant, and his extreme symptoms of depression. When sentencing, the Judge took into account the defendant’s health problems and the fact that they would make life in prison more difficult for him than others. However, as the Judge observed, there was nothing to suggest that those problems could not be appropriately managed in custody.
The defendant’s antecedents extended over the preceding two decades. He had been subjected to restraint orders and had been convicted twice of failing to comply with those orders. He had also been convicted of assault.
The Judge accepted the defendant’s submission that he was unlikely to re-offend. As a result, the need for personal deterrence was less prominent. On the other hand, as the Judge pointed out, general deterrence was important, particularly bearing in mind the prevalence of domestic violence and the need for the Courts to protect the weak and vulnerable in domestic relationships.
The Appeal
On appeal the defendant submitted that the Judge was in error in taking the view that section 32(5)(ba) of the Sentencing Act required him to impose a mandatory minimum non‑parole period of four fifths of the head sentence. It was further contended that the Judge was in error in concluding that none of the special reasons set out in section 32A of the Sentencing Act applied to the defendant, to permit a departure from the requirement to impose a mandatory minimum non‑parole period.
The defendant submitted that relevant provisions of the legislation were invalid in accordance with the principles enunciated by the High Court in Kable.[3] However, it was argued that, if the amending legislation was constitutionally valid, the Judge erred in determining that no special reason existed permitting the imposition of a period of non‑parole of less than four fifths of the head sentence.
[3] Kable v DPP (NSW) (1996) 189 CLR 51.
The Legislative Scheme
Section 10 of the Sentencing Act provides that a Court, when determining sentence for an offence, must have regard to such of a number of specified matters as are relevant and known to the Court. Of particular relevance to the present debate are subsections 10(1)(g) and 10(1)(h), which relevantly provide that the court must have regard to the following:
if the defendant has pleaded guilty to the charge of the offence—that fact;
the degree to which the defendant has co-operated in the investigation of the offence;
Section 32(1)(a) of the Sentencing Act imposes a duty on a sentencing Judge to fix a non‑parole period.[4]
[4]Section 32(1)(a) provides:
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a) if the person is not subject to an existing non-parole period—fix a non-parole period;
The Criminal Law (Sentencing)(Dangerous Offenders) Amendment Act 2007 (SA)[5] came into operation on 1 November 2007 and introduced amendments to the Sentencing Act with retrospective effect.[6] At times in these reasons, the 2007 enactment is referred to as the amending legislation. The amendments of relevance to the present proceedings were additions to section 32, and the introduction of a new section 32A. The new subsection 32(5)(ba) provides for the imposition of minimum non-parole periods:
if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence;
A serious offence against the person is defined by section 32(10)(d) to mean a major indictable offence (other than an offence of murder) that results in the death of the victim or the victim suffering total incapacity. If such injury, or death is caused, the mandatory minimum non-parole provisions are enlivened.
[5] Act No 27 of 2007.
[6] Criminal Law (Sentencing)(Dangerous Offenders) Amendment Act 2007 (SA) section 11.
Section 32A provides for the circumstances in which the sentencing court may reduce or increase the prescribed minimum:
Mandatory minimum non-parole periods and proportionality
(1)     If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies.
(2)     In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may—
(a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)     In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.
(4)     This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.
Relevant Principles of Construction
Before coming to discuss the interpretation of section 32A and related provisions of the legislative scheme, it is convenient to identify a number of pertinent principles of statutory construction.
The adoption of a purposive construction is the usual or general approach to be taken to issues of statutory construction.[7] A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA).[8] This principle was addressed by Kirby J In Palgo Holdings Pty Ltd v Gowans:[9]
... a purposive and not a literal approach[10] is the method of statutory construction that now prevails:[11]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[12] As Lord Diplock explained, in an extra-judicial comment,[13] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[14]
[7]    Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J).
[8]    Acts Interpretation Act 1915 (SA) section 22(1) provides:
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[9]    Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[10] Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[11] Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 (McHugh JA) approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
[12] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[13] Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[14] Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice (1978) 263, 274; cited in Kingston (1987) 11 NSWLR 404 at 424.
All words in a statute must prima facie be given some meaning and effect. In Project Blue Sky v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ observed:[15]
[A] court construing a statutory provision must strive to give meaning to every word of the provision.[16] In The Commonwealth v Baume[17] Griffith CJ cited R v Berchet[18] to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[15] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
[16] The Commonwealth v Baume (1905) 2 CLR 405 at 414 (Griffith CJ) at 419 (O'Connor J); Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13 (Mason CJ).
[17] Commonwealth v Baume (1905) 2 CLR 405 at 414.
[18] R v Berchet (1688) 1 Show KB 106 [89 ER 480].
The importance of context as an aid to statutory construction was noted by Kirby J in Palgo Holdings v Gowans:[19]
... the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.[20] In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.[21]
The context of a statute is not confined to its own words and their deployment within it, but also includes the legislative history, the statutory context furnished by legislation in pari materia, and the existing state of the law in which the statute was enacted, which embraces the then understanding of equity and the common law.[22]
[19] Palgo Holdings v Gowans (2005) 221 CLR 249 at [37].
[20] R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28] (Lord Steyn).
[21] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561.
[22] K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 (Mason J); Wik Peoples v Queensland (1996) 187 CLR 1 at 171 (Gummow J).
Two further principles have been recently addressed by the High Court, in K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor.[23] French CJ summarised those principles in the following terms:[24]
Before the constitutional validity of a statute is considered its meaning and operation must be ascertained. The point of departure in that exercise is the ordinary and grammatical sense of the words having regard to their context and legislative purpose. Interpretation is also to be informed by the principle that the parliament, whether of the State or the Commonwealth, did not intend its statute to exceed constitutional limits. It should be interpreted, so far as its words allow, to keep it within constitutional limits. That is a principle of general application. It is also an approach mandated by the Acts Interpretation Act 1915 (SA).
There is also a well established and conservative principle of interpretation that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. That is to say, there is a presumption against a parliamentary intention to infringe upon such rights and freedoms. That presumption has been described in the United Kingdom as an aspect of a “principle of legality” governing the relationship between parliament, the executive and the courts. It was explained by Lord Hoffmann in R v Secretary of State for the Home Department; Ex parte Simms:
“[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”
Gleeson CJ described the presumption as “a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted”. He added, “[t]he hypothesis is an aspect of the rule of law”.
It is an aspect of the rule of law that courts sit in public and that they accord procedural fairness. The importance of these two principles requires a conservative approach to the interpretation of statutes affecting them.
[23] K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor [2009] HCA 4.
[24] K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor [2009] HCA 4 at [46]-[48]. (footnotes omitted)

The concept of equal justice before the law and the importance of consistency in punishment as a reflection of such equality, was highlighted by Mason J in Lowe:[55]
Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.
[55] Lowe v The Queen (1984) 154 CLR 606 at 610-611.
In Leeth,[56] Deane and Toohey JJ considered that, by necessary implication, the Constitution adopts the common law doctrine of legal equality:[57]
…involves the underlying or inherent theoretical equality of all persons under the law and before the courts. The common law may discriminate between individuals by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of conduct which it proscribes, punishes or penalises. It may have failed adequately to acknowledge or address the fact that, in some circumstances, theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality. Nonetheless, and putting to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government. Conformably with its ordinary approach to fundamental principles, the Constitution does not spell out that general doctrine of legal equality in express words. The question arises whether it adopts it as a matter of necessary implication. In our view, several considerations combine to dictate an affirmative answer to that question.
…
For another thing, the doctrine of legal equality is, to a significant extent, implicit in the Constitution's separation of judicial power from legislative and executive powers and the vesting of judicial power in designated “courts”. Chapter III of the Constitution “is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with [its] provisions”. Those provisions not only identify the possible repositories of Commonwealth judicial power. They also dictate and control the manner of its exercise. They are not concerned with mere labels or superficialities. They are concerned with matters of substance. Thus, in Ch.III's exclusive vesting of the judicial power of the Commonwealth in the “courts” which it designates, there is implicit a requirement that those “courts” exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially. At the heart of that obligation is the duty of a court to extend to the parties before it equal justice, that is to say, to treat them fairly and impartially as equals before the law and to refrain from discrimination on irrelevant or irrational grounds.
Finally, once it is appreciated that it is the ordinary approach of the Constitution not to spell out the fundamental common law principles upon which it is structured, the existence of a number of specific provisions which reflect the doctrine of legal equality serves to make manifest rather than undermine the status of that doctrine as an underlying principle of the Constitution as a whole.
[56] Leeth v Commonwealth (1992) 174 CLR 455.
[57] Leeth v Commonwealth (1992) 174 CLR 455 at 486.
Deane and Toohey JJ qualified their discussion on legal equality with the following:[58]
The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. In one sense, almost all laws discriminate against some people since almost all laws operate to punish, penalise or advantage some, but not all, persons by reference to whether their commands are breached or observed. While such laws discriminate against those whom they punish or penalise or do not advantage, they do not infringe the doctrine of the equality of all persons under the law and before the courts. To the contrary, they assume that underlying legal equality in that they discriminate by reference to relevant differences. Again, laws which distinguish between the different needs or responsibilities of different people or different localities may necessarily be directed to some, but not all, of the people of the Commonwealth. Provided that the differentiation of and between those to whom they are addressed does not involve discrimination of a kind that infringes their inherent equality as people of the Commonwealth, such laws will not infringe the doctrine of equality under the law and before the courts.
[58] Leeth v Commonwealth (1991) 174 CLR 455 at 486.
The investiture of the power to make discriminatory rulings results in the courts no longer exhibiting one of the defining characteristics which mark a court apart from other decision-making bodies. The “institutional integrity” of the Courts is compromised when the judiciary begins to exercise something other than judicial power.
The considerations referred to above allow the conclusion that in the exercise of judicial power by a court, convicted persons should not be “discriminated” against in the determination of the head sentence or in the fixing of a non-parole period merely because they have chosen to assert or exercise rights conferred upon them. The court cannot be made to be the vehicle by which inequality of treatment is applied to a convicted person. In this context, if the only relevant special reason available to a person under section 32A(3) was to plead “guilty”, and they did not do so, they would thereby forfeit the chance of a reduced mandatory non-parole period.[59] Similarly, if the only relevant special reason available to a convicted person under section 32A(3) was to co-operate with the police, and they did not do so, they would thereby forfeit the chance of a reduced mandatory non-parole period.
[59] See the comments of Kirby J in Cameron v The Queen (2002) 209 CLR 339 at 369[94].
Counsel for the defendant submitted that section 32A(3) of the Sentencing Act does “discriminate” because - all other things being equal - a person who pleaded guilty or co-operated in the investigation with the prosecution would receive a lesser non-parole period compared with a person who did not. To do otherwise would not give full effect to the legislation. In other words, it was said, a person who elected to be tried by jury would be required by the legislation to be treated by the court unequally.[60] It was then contended that such discriminatory or unequal treatment was inconsistent with the exercise of federal jurisdiction as foreshadowed by McHugh J in Cameron.[61] Accordingly, the construction propounded by the defendant to be the proper construction of the amendments would offend the Kable doctrine and would result in constitutional invalidity.
[60] Cameron v The Queen (2002) 209 CLR 339 at 352-353[44]-[45] (McHugh J) and 369[94] (Kirby J).
[61] Cameron v The Queen (2002) 209 CLR 339 at 352[44].
If the legislation, properly construed, had this effect, then in my view not only would the particular subsection be invalid, but such invalidity could potentially invalidate the related provisions of the legislative scheme. It is evident that Parliament was concerned to provide a plea of guilty and the circumstances surrounding that plea, as a matter that could amount to special reasons in order to enliven the discretion to impose less than the mandatory minimum non-parole period. To remove this provision alone could affect the integrity of the legislative scheme.
If the legislation were to be construed as contended for by the defendant, it is my view that the statute would require a sentencing Judge to impose unequal punishment on like offenders. By like offenders I refer to persons in relevantly identical circumstances save for the difference of plea. However, I should say immediately that the construction advanced by the defendant is not the only construction open with respect to the relevant provisions of the statute.
It is to be recalled that in Palling v Corfield,[62] the applicant argued that section 49(2) of the National Service Act 1951 (Cth) was invalid because it required a court to impose a mandatory term of imprisonment for 7 days. The High Court rejected the argument. Barwick CJ said:[63]
It seems to me that the argument supporting the applicant's submission as to its invalidity was founded on a basic misconception as to the exercise of judicial power in relation to the imposition of penalties or sentences for the commission of offences created by statute. It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it may lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded: nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute. Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose specific punishment. If Parliament chooses to deny the court such a discretion, and to impose such a duty, as I have mentioned the court must obey the statute in this respect assuming its validity in other respects. It is not, in my opinion, a breach of the Constitution not to confide any discretion to the court as to the penalty to be imposed.
It follows that legislation requiring State courts to impose mandatory or minimum sentences is not offensive to Chapter III of the Constitution.[64] If State legislation can validly require a court to impose a mandatory or minimum head sentence for all persons found guilty of a particular offence, then there is no reason in principle why State legislation cannot validly require the imposition of a minimum non-parole period. That period could be expressed in absolute terms or as a percentage of the head sentence to be imposed in the particular case.
[62] Palling v Corfield (1970) 123 CLR 52.
[63] Palling v Corfield (1970) 123 CLR 52 at 58.
[64] Lloyd v Snooks (1999) 9 Tas R 41; Wynbyne v Marshall (1997) 177 NTR 11.
The propositions in the preceding paragraph, propounded by the Solicitor‑General, were not challenged by the defendant. The defendant’s submission was that the limited exceptions permitting the exercise of a discretion by a court to impose less than the statutory minimum were discriminatory and in given circumstances would require a court to unequally punish like offenders. The Solicitor‑General challenged the proposition that this was the effect of the exceptions identified in the legislation. Of the three bases in section 32A(3) identified to give rise to a conclusion that special reason exists to enliven the discretion to depart from the mandatory minimum requirement, the first, the conduct of the victim, has no relevance in the present case and in any event would have application whether or not a defendant pleaded guilty or not guilty. There is no suggestion of inequality in this provision.
The Solicitor‑General contended that the words in section 32A(3) to “if the offender pleaded guilty to the charge of the offence - that fact and the circumstances surrounding that plea”, were to be understood as a reference to a plea of guilty to sentencing as explained by the High Court in Cameron.[65] It was submitted that this was evident having regard to the enactment of the provision subsequent to the High Court’s decision in Cameron as well as the reference in the subsection to the circumstances surrounding the plea. As Gaudron, Gummow and Callinan JJ observed:[66]
Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial[67]. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.
This treatment of the matter is consistent with what in their joint judgment in Castlemaine Tooheys Ltd v South Australia[68] 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”[69]. 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.
[65] Cameron v The Queen (2002) 209 CLR 339.
[66] Cameron v The Queen (2002) 209 CLR 339 at [12]-[15] [Emphasis added].
[67] Siganto v The Queen (1998) 194 CLR 656 at 663 [22], (Gleeson CJ, Gummow, Hayne and Callinan JJ). See also R v Gray [1977] VR 225 at 231.
[68] Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478-479.
[69] Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 480.
The Solicitor‑General accepted that it was open to the Court to give the words “co-operated” and “co-operation” used in section 32A(3)(c) a wide or broad meaning. Such a construction is appropriate and is supported and reinforced by the relevant context. Co-operation in the investigation or prosecution would appear to evidence a willingness to assist the administration of justice.
Subsection 32A(3)(c) requires a judge to consider the degree of co‑operation. The degree is to be understood as involving a range, from the minimal to the substantial. The Court may identify that there has been co‑operation but not of such a degree so as to justify a conclusion that special reason within the meaning of the subsection has been established.
Such a construction would enable a defendant who pleaded not guilty, to establish, notwithstanding such plea, that through co-operation the defendant had evidenced a willingness to assist the administration of justice. In these circumstances, despite a plea of not guilty, a defendant would have the opportunity to contend that special reason existed to depart from the mandatory minimum. In this way it can be seen that the Court has the ability to provide equal justice to like offenders. It would follow that there is no relevant discrimination.
In my view the legislation may be so construed and should be so construed. In these circumstances, there is no constitutional invalidity in the State statutory provisions.
Co-operation
It was submitted that in the circumstances of the present proceeding, the defendant had co‑operated in the investigation and in the prosecution in such a way as to require the Judge to consider whether special reasons existed. It was said that, in the particular circumstances, the co‑operation of the defendant was such that the conclusion should be reached that special reason did exist and that the circumstances were sufficient to allow the Judge to fix a non‑parole period shorter than the prescribed minimum
The defendant identified a number of matters said to establish co‑operation both in the investigation and in the prosecution of his offence. These included participating in police interrogations, co-operating with the police attendance in the search of his home, providing a forensic sample for the purposes of DNA analysis, consenting to the Director of Public Prosecutions’ vulnerable witness application, agreeing facts, giving evidence at trial including on the voir dire, co-operating with the prosecution by attending various court dates and applying for legal aid to secure legal representation and enable a certificate to be provided pursuant to section 8 of the Criminal Law (Legal Representation Act) 2001 (SA).[70]
[70] (1) At the first directions hearing to be held after the defendant's arraignment, the court—
(a)     must consider the question whether a direction is required under this section; and
(b)     must determine the question at that hearing or as soon as practicable afterwards.
(2) If the defendant is represented by a lawyer, the lawyer must, at least 7 days before the day fixed for the first directions hearing, file in the court a certificate certifying that—
(a)     the defendant is an assisted person; or
(b)     the lawyer undertakes that the defendant will be provided with legal representation for the duration of the trial; or
(c)     the defendant is not an assisted person and the lawyer is not prepared to give an undertaking under paragraph (b).
(3)The court must direct the defendant to make an application to the Commission for legal assistance unless—
(a)     the defendant is an assisted person; or
(b)     the defendant's lawyer has given an undertaking to the court that the defendant will be provided with legal representation for the duration of the trial; or
(c)     the court is satisfied, on the basis of a written assurance given by the defendant, that the defendant does not want legal representation at the trial.
(4)A direction under this section must fix a reasonable time within which the direction is to be complied with.

The Solicitor‑General accepted these factual assertions but argued that many could not be classified as co-operation, and those that could be said to amount to co-operation, were not sufficient to establish co‑operation of such a nature so as to cause a Judge to consider whether special reason existed. It was said that the only matters of substance were the defendant’s agreement to participate in police interviews, his facilitation of an inspection of his home and the agreement of a number of factual matters at his trial. It was then submitted that close analysis of the defendant’s asserted co‑operation with the police demonstrated that it was illusory. It was said that the defendant was manipulating the relevant occasions to facilitate the “spinning of a false story” to the police. It was said that the provision of the DNA sample was with respect to establishing the defendant’s involvement in the death of the deceased, and this fact was not and could not be an issue. It was contended that the so-called co‑operation with the prosecution could not relevantly include his answering his bail or his applying for legal aid. The other matters which suggested co‑operation were so minor as not to be of substance.
A number of the matters identified by the defendant do demonstrate a degree of co‑operation. The waiving of the right to silence, the co‑operation with the police and the provision of a DNA sample do involve an element of co‑operation. However, there is substance to the Solicitor‑General’s submission that viewed in the relevant context, this co‑operation can fairly be described as minor and can be characterised in part as illusory when regard is had to the false story proffered by the defendant. There was a modicum of co‑operation at trial, however, generally the trial was hard fought, with the prosecution being put to proof on most matters.
It is relevant to point out that no application was made to the sentencing Judge for consideration of co‑operation as giving rise to special reasons. Counsel attending on behalf of the defendant at the time of sentencing did not suggest that special reasons existed such that the sentencing judge should fix a non-parole period shorter than the prescribed period. This contention was only raised on appeal, when counsel for the defendant contended that “special reasons” existed such that the non-parole period was manifestly excessive.
Even if it were to be accepted that the discretion to reduce the mandatory minimum non-parole period was enlivened, there would in my view be no basis to reduce the sentence imposed on the defendant.
The courts have long recognised that personal and general deterrence have a heightened significance when sentencing for the crimes of domestic violence. As King CJ observed in Banens:[71]
The sentence which is imposed by the court for a crime of domestic violence is aimed, in large part, at deterring other people who may be involved in like situations. I think that, in a serious case of domestic violence, it is necessary for this Court to make clear, by actual intervention, to the public that the sentences imposed for this type of crime are calculated to provide effective deterrence to those who might be tempted to commit similar crimes. Not only must the penalties imposed operate, as far as such penalties can, as an effective deterrent, but it must be made clear to the public that the courts are imposing sentences having that effect. It is a question not only of actual deterrence but assurance to the public that deterrent penalties are being imposed.
[71] R v Banens (unreported, Supreme Court, SA, 18 November 1987).
In Lennon,[72] Doyle CJ reaffirmed these observations:[73]
The court has said consistently that it must do what it can to protect women from violence by men. This applies just as much to violence within a domestic relationship as it does to violence in other situations. In cases like this the community expects, and protection of women requires, that the court should impose a sentence that is likely to deter the individual offender and to deter other potential offenders. The fact that the violence occurs on the spur of the moment is a relevant factor, but this is often true in the case of domestic violence. The impulsive nature of such offences is often offset by the fact that, as here, there is a pattern of violence within the particular relationship, or on the part of the particular offender. Mr Lennon's record makes it clear that he has not yet learned that violence towards women cannot be accepted.
[72] R v Lennon (2003) 86 SASR 295.
[73] R v Lennon (2003) 86 SASR 295 at [12].
Domestic violence is predominantly directed by men toward women. The community expects the law to protect women, to protect the weak from the strong, and to protect the vulnerable from the oppressor. These are factors that have led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. Parliament has recognised that crimes involving violence and assault may be aggravated by a domestic situation.
I consider that the sentence imposed was a merciful sentence having regard to the circumstances of the offending and to the aggravating factor of domestic violence.
Conclusion
I would dismiss this appeal.
KOURAKIS J: I agree that the challenge to the validity of the provisions of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) introduced by the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) (the 2007 Act) should be rejected and the appeal against sentence dismissed for the reasons given by Doyle CJ.
I would add the following observations on the issue of discrimination between offenders on the basis of their plea.
First, it is important to be clear that we are here concerned with discrimination in the exercise of judicial power. The passages cited by Gray J from the judgments of Deane and Toohey JJ and Gaudron J in Leeth v Commonwealth[74] acknowledge that it is in the very nature of substantive laws that they apply different legal consequences to different facts. As Mason CJ, Dawson and McHugh JJ observed in Leeth, there is no constitutional difficulty in the scheme adopted by the Commonwealth Places (Application of Laws) Act 1970 (Cth) which imposes different, or no, consequences on the same acts carried out in different Commonwealth places depending on whether the Commonwealth place is in one State or another.[75] There can therefore be no constitutional or any other objection to laws that choose facts as a discrimen for their differential operation, unless the statutory selection of those facts is prohibited by a higher law. The higher law under consideration in Leeth was the constitutional conception of Commonwealth (not State) judicial power.
[74] (1992) 174 CLR 455 at 486, 501-02.
[75] Leeth v Commonwealth (1992) 174 CLR 455 at 468.
Secondly, it is to be noted that the discrimination alleged in Leeth was discrimination between offenders against Commonwealth laws who were sentenced in different States. As Brennan J observed,[76] there may well be constitutional mandates arising out of the federal structure of the Constitution that limit the extent to which the Parliament can provide for Commonwealth judicial power to be exercised differently in the States. The approach to ss 79 and 80 of the Judiciary Act 1903 (Cth) adopted by the High Court in a series of cases[77] largely removes that potential difficulty from the direction in s 79 of the Judiciary Act 1903 (Cth) that courts exercising federal jurisdiction are, subject to the Constitution and the laws of the Commonwealth, to “apply the laws of the State in which they are sitting”.
[76] Leeth v Commonwealth (1992) 174 CLR 455 at 475.
[77] Sweedman v Transport Accident Commission (2006) 226 CLR 362 at 402-03, [33]-[34]; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 530, [53]; 562, [156]; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at 258, [8]; Blunden v The Commonwealth (2003) 218 CLR 330 at 338-39, [16]-[18]; 359-61, [91]-[97].
Thirdly, there are long standing examples of the exercise of judicial power in a way which discriminates against parties on the basis of the forensic choices they make in prosecuting or defending an action to which they are a party. A defendant to a common law defamation action who recklessly pleaded truth ran the risk that if justification were not proved he or she would be mulcted in damages.[78] An applicant who brings an action, or takes a step in a proceeding, outside of the time allowed by statute or the Rules of Court may have to discharge a burden to obtain relief, which a more timely litigant, who is otherwise in a comparable position, is spared.
[78] The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254.
Fourthly, in Leeth, Mason CJ, Dawson and McHugh JJ recognised that the desirable goal of treating like offenders alike discussed in Lowe v The Queen[79] is not constitutionally entrenched. Moreover, they observed that the principle of parity of treatment as between Commonwealth prisoners may be affected by competing considerations, like parity of treatment with the State prisoners with whom Commonwealth prisoners are incarcerated, a course which is authorised by s 120 of the Constitution.
[79] (1984) 154 CLR 606.
Fifthly, it is to be noted that the issue of discrimination which arose in Cameron v The Queen[80] was anchored in s 80 of the Constitution. The passage from Castlemaine Tooheys Ltd v South Australia[81] referred to by Gaudron and Gummow JJ describes a law as discriminatory if it operates by reference to a distinction which a higher law decrees to be irrelevant, or by reference to a distinction which is in fact irrelevant to the object to be attained. The issue in Cameron therefore appears to have been whether treating an offender who has pleaded guilty more favourably than one who had availed himself of his right to trial by jury was prohibited by a necessary implication arising out of s 80 of the Constitution. At a State level there is no entrenched right to trial by jury. Section 280 of the Criminal Law Consolidation Act 1935 (SA) is a statutory, not a constitutional, provision, and there is no reason to read the Act down by reference to it.
[80] (2002) 209 CLR 339.
[81] (1990) 169 CLR 436 at 478-80.
In Cameron there was also a related issue which was whether such treatment was irrelevant to either the object to be attained by the law against which Cameron had offended or the objects of the judicial power of the Commonwealth. As Mason CJ, Dawson and McHugh JJ observed in Leeth, that issue ultimately must be resolved by a consideration of the impugned law and the constitutional head of power, or powers, pursuant to which it was enacted.[82] Where the relevant power is, as here, the judicial sentencing power, the question is: is it irrelevant, or even repugnant, to the sentencing function to attach different sentencing consequences to pleas of guilty and not guilty respectively? The substantive, procedural and evidential rules applicable to criminal proceedings are replete with prescriptive rules, principles and practices which reflect a compromise between the interests of the community and the accused. I acknowledge that many members of the community and the legal profession hold strong views about how that balance should be struck. A formal confession of guilt before a judicial tribunal has long been accepted as a sufficient reason to dispense with the requirement of a trial.[83] Even though different views can rationally be held about the desirability of attaching sentencing advantages to a plea of guilty, it is difficult to see why it is irrational to have regard to the interest of the community, and in particular the victims of offences, in the early resolution of criminal proceedings. In any event, State legislative power is not limited by reference to subject matter, and the judicial power of the State is not directly confined by the terms of Chapter III of the Constitution. It follows that the discriminatory operation of State law cannot take it outside of the scope of the State’s legislative or judicial power.
[82] Leeth v Commonwealth (1992) 174 CLR 455 at 469.
[83] Sir James Fitzjames Stephen, A History of the Criminal Law of England (1883) vol I, Ch II p 45; Ch III p 70, Chapter IV p 297-301; Sir Matthew Hale, The History of the Pleas of the Crown (1800) vol II, p 223.
Finally, even if, contrary to the position suggested by the preceding observations, it were to be accepted that there was a constitutional limitation on the extent to which State legislative power could differentiate between offenders for the purpose of sentencing depending on whether they pleaded guilty or not guilty, that limitation would not apply where the differential treatment is calculated to achieve a legitimate goal which is compatible with the objects of the criminal law.[84] For example, and relevantly to the challenge to the validity of the 2007 Act, for the reasons given in Cameron, it is at least permissible to do so where a guilty plea indicates a willingness to facilitate the course of justice.[85]
[84] Cameron v The Queen (2002) 209 CLR 339 at 343-44, [15].
[85] Cameron v The Queen (2002) 209 CLR 339 at 343-44, [12]-[15].
It appears to me that all guilty pleas indicate a willingness to facilitate the course of justice, some more than others. Moreover, the features against which such willingness must be measured do not appear to me to be any different than the features which fall to be considered on a purely utilitarian approach to the sentencing consequences of a guilty plea. In my view, a guilty plea may warrant a reduced penalty for reasons other than its demonstration of a willingness to facilitate the course of justice. For example, it may be that a late guilty plea, which is little more than a recognition of the inevitable, but nonetheless saves a victim of sexual or other violence from the ordeal of giving evidence, is entitled to greater weight than the bare willingness to facilitate the course of justice would warrant. It is not obvious to me that a statutory or common law rule permitting that course does not serve a legitimate purpose. Nor is it obvious to me that a law, which expressly reversed the common law position, and allowed a court to treat as an aggravating factor the anguish suffered by a victim in giving evidence, would serve an illegitimate purpose. It is not necessary to decide those issues on this appeal. However, in my view it should not be assumed that there would be a constitutional difficulty with legislation which allowed a court to have regard to such matters in that way.
I also wish to add the following observations about the operation and application of the provisions of the Act under consideration in this appeal. In my view, the practical application of s 32A of the Act will raise broadly similar issues to those that sentencing courts have grappled with in fixing non-parole periods pursuant to s 32 of the Act. To a large extent the function of sentencing courts under both sections is to balance competing sentencing considerations in order to determine the extent, if any, that a sentence of imprisonment should be served on parole. The proportion that a non-parole period fixed pursuant to ss 32(5)(ba) and 32A of the Act bears to the head sentence will vary according to the relative weight given to the elements of punishment, deterrence, and rehabilitation in the particular circumstances of the offence and offender, just as it does in the case of a non-parole period fixed pursuant to s 32(1) of the Act. In fixing that proportion, sentencing courts will be guided by the standards that emerge from the sentences they impose and the demand of justice for parity and a level of consistency between offenders.
The difference between non-parole periods fixed pursuant to s 32(1) and those fixed in accordance with ss 32(5)(ba) and 32A of the Act is that there will be a smaller variation around a higher benchmark in the case of non-parole periods fixed pursuant to the latter provisions than in the former. Although there has never been a “norm” for non-parole periods fixed pursuant to s 32(1) of the Act, non-parole periods have, for good reason, often been fixed at about two-thirds of the head sentence,[86] with some variation above or below that benchmark depending on the particular circumstances of the case. In a similar, but not identical, way, non-parole periods fixed pursuant to ss 32(5)(ba) and 32A will often be fixed at four-fifths of the head sentence, subject again to the particular circumstances of each case.
[86] See R v Matthews [2008] SASC 259 and the discussion in Foley v Police [2008] SASC 338 at [17]-[20].
The points of difference are these. First, pursuant to s 32(1) of the Act, the discretion to fix a non-parole period is restricted only by the relevant considerations under the Act and the interests of justice. Pursuant to ss 32(5)(ba) and 32A, special reasons to fix a lower proportion than the mandatory minimum non-parole period must be identified solely by reference to those considerations mentioned in s 32A(3) of the Act. Secondly, it follows from the limited number of relevant considerations in s 32A(3) of the Act that other subjective factors not there mentioned, which would otherwise suggest greater scope for rehabilitation, can not effect a reduction in the mandatory minimum non-parole period, even though they would result in a relatively lower non-parole pursuant to s 32(1) of the Act.
However, the common law sentencing principle that like cases should be treated alike, and that material differences between cases should be reflected in the penalty, applies to ss 32(5)(ba) and 32A of the Act. It follows that the extent to which the non-parole period that is fixed pursuant to those sections falls below the mandatory non-parole period should be proportionate to the special reasons which enliven the discretion. A finding of special reasons does not mean that the mandatory minimum non-parole period can be ignored. Moreover, there must be a reasonable level of consistency in the non-parole periods fixed in those cases which attract a finding of special reasons. Differences in non-parole periods should reflect the degree of culpability of different offenders, and in particular the relative weight of the considerations which supported the finding that there were special reasons to fix a non-parole period below the mandatory minimum.
Where there are no special reasons and the nature of the conduct constituting the offence, the personal circumstances of the offender, or both, show that there is relatively less scope for rehabilitation, a non-parole period greater than the mandatory minimum must be fixed. Again, the extent to which non-parole periods exceed the mandatory minimum must reflect the relative seriousness of the offence and the different prospects of rehabilitation of the offenders.
It is likely, therefore, that the distribution of non-parole periods around what can, for convenience, be called the benchmark set by s 32(5)(ba) of the Act can be expected to show a smaller variation and be weighted towards a higher proportion of the head sentence for serious offences than is the case for offences dealt with pursuant to s 32(1) of the Act.