R v Robinson

[1986] HCA 48

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Deane and Dawson JJ.

THE QUEEN v. KEVIN JOHN NORMAN ROBINSON

13 August 1986

Decisions

GIBBS C.J.: An indictment presented in the District Court of Queensland charged that the respondent, being a servant, stole sums of money amounting to more than $4,000. The respondent pleaded guilty. The learned District Court Judge ordered that the respondent be discharged upon his entering into his own recognizance in the sum of $500, conditioned that he appear and receive judgment of the court at any time when called upon within a period of twelve months and further conditioned that he in the meantime keep the peace and be of good behaviour. The order was made in exercise of the power given by s.19(9) of the Criminal Code (Q.) ("the Code"), which is in the following terms:

"When a person is convicted of any offence, the Court or Justices may, instead of passing sentence, discharge the offender upon his entering into his own recognizance, with or without sureties, in such sum as the Court or Justices may think fit, conditioned that he shall appear and receive judgment at some future sittings of the Court or when called upon within a period specified by the Court or Justices and, if the Court or Justices think fit, that he shall in the meantime keep the peace and be of good behaviour."

The Attorney-General of Queensland gave notice that he appealed to the Court of Criminal Appeal "against the sentence imposed on the ... respondent", on the ground of its inadequacy. By s.669A(1) of the Code, the Attorney-General may appeal to the Court of Criminal Appeal "against any sentence pronounced by ... the court of trial" and the Court of Criminal Appeal may "vary the sentence and impose such sentence as to the Court seems proper". In the present case the Court of Criminal Appeal, following an earlier decision of its own in Reg. v. Beldan (1985, unreported), held that the order made by the learned District Court Judge was not a sentence within the meaning of s.669A and dismissed the appeal as incompetent. The Attorney-General now seeks special leave to appeal from that decision.

2. Section 18 of the Code lists the punishments which may be inflicted under the Code and includes in the list "Finding security to keep the peace and be of good behaviour". By s.19(7) a convicted person may, instead of, or in addition to, any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, to keep the peace and be of good behaviour and may be ordered to be imprisoned until such recognizance is entered into; other provisions, like s.19(9), empower the court to discharge the offender upon his entering into his own recognizance, with or without sureties: see s.19(8) and s.19(9A). In certain circumstances, where the court thinks it not expedient to inflict any punishment or any other than a nominal punishment, the court may (inter alia) make an order discharging the offender conditionally upon his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called upon at any time during such period not exceeding three years as is specified in the order (s.657A of the Code). By s.668D of the Code, a person convicted on indictment may appeal to the Court of Criminal Appeal - "(c) With the leave of the Court, against the sentence passed on his conviction." Both s.668D and s.669A appear in Ch.LXVII of the Code and by s.668 it is provided (inter alia) that in that chapter:

"The term 'sentence' includes any order made by the court of trial on conviction with reference to the person convicted or his property.

The power of the Court to pass any sentence includes a power to make any such order."

By s.668E(3) it is provided as follows:

"On an appeal against a sentence, the Court,

if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

In certain special cases dealt with in sub-ss.(1), (2) and (3) of s.668F, the court is empowered to substitute one "sentence" for another.

3. Although "Finding security to keep the peace and be of good behaviour" is treated by s.18 as a punishment, it is clear from the words of s.19(9) that when the court discharges an offender upon his entering into his own recognizance, even with sureties, under that sub-section it is not imposing a sentence in the ordinary sense. The sub-section itself says that the court may act under its provisions "instead of passing sentence" and when the court discharges the offender upon his entering into his recognizance the passing of the sentence is postponed or deferred; if the offender is called on to appear and receive judgment at a future sitting of the court any sentence then imposed upon him is for the original offence and not for the breach of the recognizance: see Reg. v. Blow (1963) QWN 1, at p 3; Griffiths v. The Queen (1977) 137 CLR 293, at p 343.

4. The question in the present case however is whether an order under s.19(9) is a "sentence" within the extended meaning given by s.668 for the purposes of Ch.LXVII of the Code; in other words, is it an order made on conviction "with reference to the person convicted or his property". In R. v. McKeown (1940) StRQd 202 the Court of Criminal Appeal of Queensland held, without full discussion, that such an order is a sentence within ChLXVII and that an appeal from such an order may be brought by the Attorney-General under s.669A. However the Court of Criminal Appeal in Reg. v. Beldan accepted the contrary view in deference to the decision of this Court in Griffiths v. The Queen. In the latter case the trial judge when formally convicting the respondent remanded him for sentence to a date in twelve months time on the condition that he should enter into a bond in the sum of $200 conditioned on his being of good behaviour during that period and appearing at court on that date to receive sentence and on his placing himself under the supervision of the Probation and Parole Service and obeying all the reasonable directions of the officers of that Service. This Court held that the respondent had not been sentenced within the meaning of s.5D of the Criminal Appeal Act 1912 (N.S.W.), as amended, which, like s.669A of the Code, gave the Attorney-General a right to appeal against sentence. By s.2 of that act, "sentence" was defined to include "any order made by the court of trial on conviction with reference to the person convicted, or his property ..." - words identical with those of the definition contained in s.668 of the Code. The Court in Griffiths v. The Queen held that the judge in that case had not sentenced the respondent but had merely deferred sentence and that the order was not one "with reference to the person convicted or his property" within the meaning of s.2 of the Criminal Appeal Act. Stephen J. said, at p.312:

"To order release upon recognizance was clearly not an order with reference to the applicant's property. Nor did it impose any restraint upon the person of the applicant; on the contrary it terminated the restraint which had previously existed during custody pending appearance for sentence. It is no doubt an order which refers to the person of the applicant but, in its context as an extension of the meaning of 'sentence', the relevant phrase of the definition should, in my view, be understood as concerned only with orders which adversely affect an accused. This the order for release did not do."

Similarly, Aickin J. said, at p.345:

"It appears to me that the words of the

definition in their context mean affecting the person or the property of the accused or the convicted person. The question therefore remains whether the order that the accused be released on entering into a recognizance is one 'with reference to his person' in the sense indicated. His position is changed by that order, but not adversely. The reference to an order affecting the person or the property of an accused indicates only one with an adverse effect. The order actually made did not restrain or otherwise adversely affect the person of the applicant."

See also per Barwick C.J., at p.307 and per Jacobs J., at pp.324-325. It is apparent that the reasoning accepted in that case would lead to the same result if applied to s.19(9) of the Code. Indeed Barwick C.J. said, at p.307, that a judge exercising the power given by s.558 of the Crimes Act 1900 (N.S.W.), as amended (a provision substantially the same in effect as s.19(9) of the Code) would not be sentencing the accused; see also per Aickin J., at pp.342-343.

5. In Reg. v. Carngham (1978) 140 CLR 487 this Court, distinguishing Griffiths v. The Queen, held that a sentence imposed under s.20(1) of the Crimes Act 1914 (Cth), as amended, to imprisonment for two years coupled with an order for release after serving part of the term upon the convicted person entering into a recognizance to be of good behaviour for the balance of the term was a "sentence" within s.5D of the Criminal Appeal Act 1912. Section 20(1) of the Crimes Act provides:

"If the Court thinks fit to do so, it may

release any person convicted of an offence against the law of the Commonwealth without passing any sentence upon him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for such period as the Court thinks fit to order and will during that period comply with such conditions as the Court thinks fit to impose, or may order his release on similar terms after he has served any portion of his sentence."

By s.20(2), if any person who has been released in pursuance of s.20 fails to comply with the conditions upon which he was released he shall be guilty of an offence. Griffiths v. The Queen was distinguished on the ground that when a court, acting under s.20(1), passes a sentence of imprisonment and orders the release of the convicted person after he has served a portion of that sentence, the order for release must be treated as a qualification of the sentence of imprisonment and must be regarded as part of the sentence itself. The Court did not find it necessary to decide whether an order for the conditional release of an offender made under the first limb of s.20(1) would be a sentence within the meaning of s.5D. I inclined to the view that it would not (see at p.492); Jacobs J., on the other hand, inclined to the contrary view (see at p.496). However, nothing said in any of the judgments in that case cast any doubt on the authority of Griffiths v. The Queen.

6. Mr Sturgess, who appeared for the Attorney-General, convincingly demonstrated that the construction of s.19(9) which an adherence to Griffiths v. The Queen requires may lead to possible inconvenience and even injustice. In the first place it is somewhat surprising that the Attorney-General is given a right to appeal against a sentence of imprisonment which is too light but, except as provided by s.657A(4) which will be discussed later, has no right to appeal if no sentence of imprisonment is imposed and the offender is simply released on his own recognizance. What is more important is that it inevitably follows that if "sentence" in Ch.LXVII is given the meaning attributed to it by Griffiths v. The Queen, the powers of the Court of Criminal Appeal will be limited in a manner most unlikely to have been intended. If the Court of Criminal Appeal, acting under s.668E(3) decides to quash a sentence or impose another sentence less severe, it will not be able to act under s.19(9) and the same will be true if the Court of Criminal Appeal wishes to substitute a less severe sentence under s.668F. It further follows that a convicted offender could not appeal against an order made under s.19(9) but that does not appear likely to be a matter of practical significance.

7. We were not asked to overrule Griffiths v. The Queen but it was submitted that these considerations should lead us to distinguish it and hold that it is inapplicable to the Code. There is a close correspondence between the provisions of the Code relevant to appeals and those of the Criminal Appeal Act 1912 (N.S.W.): ss.668D(c), 668E(3), 668F(1), (2) and (3) and 669A of the Code correspond in material respects to ss.5(1)(c), 6(3), 7(1), (2) and (3) and 5D of the Criminal Appeal Act. It is true that the Court in Griffiths v. The Queen did not discuss the inconvenience that might result from its decision, although Barwick C.J., at p 307, clearly recognized that if the Attorney-General could not appeal from an order remanding the convicted person for sentence on condition that he enter into a bond, equally the offender could not appeal and said:

"Clearly, having deferred sentence on the convicted person the judge cannot force on the convicted person the burden of the recognizance. That person may refuse to enter into it. But, if he enters into it there can be no injustice in holding that he cannot appeal against the order to which in substance he has consented."

There is no ground on which the relevant provisions of the Code may be distinguished from the provisions of the statute considered in Griffiths v. The Queen.

8. Mr Sturgess relied on the provisions of s.13 of the Crown Proceedings Act 1980 (Q.), by virtue of which a court, judge or justice shall, upon forfeiture of a recognizance made to the Crown order (inter alia) that the amount set forth in the recognizance be paid and that in default of payment of the amount ordered to be paid the person indebted, if the principal, be imprisoned. This, he submitted, meant that an order under s.19(9) adversely affects the person convicted. Such an order, however, is for the discharge of the offender provided that he enters into the recognizance and according to Griffiths v. The Queen an order of that kind does not adversely affect the person convicted. Any adverse effect will flow from a breach of the recognizance rather than from the order of the court. Mr Sturgess further submitted that an order under s.19(9) finally disposes of the consequences of conviction, since, according to s.18 of the Code, it imposes a punishment and by s.16 of the Code a person cannot be twice punished for the same act or omission. However it is quite clear from the provisions of s.19(9) that an order made under that sub-section does not, as a matter of law, prevent the court from calling up the offender for sentence, although in practice the offender would not be brought up again for sentence unless he was guilty of some wrongdoing: see R. v. McKeown, at p 213 and Griffiths v. The Queen, at p 323.

9. For these reasons, the Court of Criminal Appeal in Reg. v. Beldan rightly held that the authority of Griffiths v. The Queen required the conclusion that an order under s.19(9) is not a sentence against which the Attorney-General may appeal. Some further support for that view may be found in the fact that s.657A of the Code contains, in sub-s.(4), an express provision whose effect is that where pursuant to that section the offender is discharged absolutely or conditionally (that is, conditionally upon his entering into a recognizance with or without sureties) the Attorney-General shall have the same right of appeal as he would have had if the offender had been convicted and the order made in respect of him were a sentence. This provides an indication, however slight, that the legislature recognized that such an order would not otherwise be a sentence against which the Attorney-General could appeal. It may be added that although the Code has been amended since the decision in Griffiths v. The Queen was given, nothing has been done to give a right of appeal against orders made under s.19(9) and other orders of a similar kind.

10. The Court of Criminal Appeal was correct in holding that the Attorney-General's appeal was incompetent. Special leave to appeal should be granted, in view of the importance of the matter, but the appeal should be dismissed.

MASON, WILSON, DEANE and DAWSON JJ.: The decision of this Court in Griffiths v. The Queen (1977) 137 CLR 293 was, in so far as it is presently in point, concerned with what constitutes a "sentence" for the purpose of determining the effect of provisions providing for an appeal, including an appeal by the Crown, against sentence. The definition of "sentence" in that case corresponded with the definition of "sentence" in s.668 of the Criminal Code (Q.) ("the Code"). We would not be prepared to reopen the decision in Griffiths in that regard. In our view, that decision was applicable in the present case to compel the conclusion that the purported appeal to the Queensland Court of Criminal Appeal was incompetent. If the decision in Griffiths has exposed a situation which is unsatisfactory, the solution must lie with the legislature. It may be noted that Griffiths was followed by an amendment to the relevant law in New South Wales: see Criminal Appeal (Crimes) Amendment Act 1979 (N.S.W.).

2. There is one further comment which we would make. Our present view is that we would not be prepared to extend the scope of the decision in Griffiths by applying it to restrict the powers conferred upon an appellate court to pass a substituted sentence by a provision such as s.668E of the Code by excluding therefrom authority to make orders of the kind referred to in s.19(9) or s.657A of the Code which are conferred upon courts of first instance as an incident of their sentencing powers.

3. We would refuse special leave to appeal.

Orders

Application for special leave to appeal refused.