R v SA
[2001] VSCA 117
•23 July 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 29 of 2001
| THE QUEEN |
| v. |
| S.A. |
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JUDGES: | BROOKING, ORMISTON and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 July 2001 | |
DATE OF JUDGMENT: | 23 July 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 117 | |
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Criminal law - Sentence - Wholly suspended sentence in Magistrates' Court - Appeal to County Court - Partly suspended sentence substituted - Application for leave to appeal to Court of Appeal incompetent - Re Bennison's Application (unreported, 2/10/91) overruled.
Magistrates' Court Act 1989, s.91(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. and Ms R.E. Carlin | Solicitor for Public Prosecutions |
For the Applicant | Mr O.P. Holdenson, Q.C. and Mr G.Mullaly | Stary Myall |
BROOKING, J.A.:
On 9 August 2000 the applicant was convicted in the Magistrates' Court at Melbourne on each of four charges of indecently assaulting his niece. On each charge he was sentenced to six months' imprisonment, the sentences being allowed to be served concurrently by operation of law. In each case the magistrate made an order wholly suspending the sentence.
The applicant appealed to the County Court against the order made in each case. After a three-day hearing the County Court judge convicted him on the second, third and fourth charges only. After hearing a plea and taking time for consideration, her Honour, on 23 February 2001, sentenced the applicant as follows, no order for cumulation being made -
charge 2 - four months' imprisonment.
charge 3 - twelve months' imprisonment.
charge 4 - four months' imprisonment.The total effective sentence was thus twelve months. Her Honour made an order suspending nine months of that sentence.
In the result, the applicant was required to serve an immediate custodial sentence, a fate he had escaped in the Magistrates' Court.
He now applies for leave to appeal against the sentences imposed in the County Court. The respondent says that the application is not competent. The question of competency depends upon the construction of s.91(2) of the Magistrates' Court Act 1989. By s.91(2) -
"(2) If -
(a)under section 86(1) the County Court orders that the appellant be sentenced to a term of imprisonment; and
(b)the Magistrates' Court in the proceeding that is the subject of the appeal had not ordered that the appellant be imprisoned -
the person sentenced to be imprisoned may, with the leave of the Court of Appeal, appeal to the Court of Appeal against the sentence."
In Re Bennison's Application, an unreported decision of Ashley, J. given on 2 October 1991, the applicant had been given a wholly suspended sentence of imprisonment in the Magistrates' Court and had, in consequence of a successful appeal by the Director of Public Prosecutions pursuant to s.84(1) of the Magistrates' Court Act 1989, been sentenced by the County Court judge to a term of imprisonment, a minimum term before eligibility for parole being fixed.
At that time paras. (a) and (b) of s.91(2) of the Magistrates' Court Act were in the same terms as they are now, but the sub-section provided that in the events mentioned in those paragraphs the person sentenced to be imprisoned might, with the leave of the Supreme Court, appeal to the Full Court against sentence. Ashley, J. held the application made to him for leave to appeal to be competent, accepting an argument based on the suggested distinction between two kinds of order - an order that the appellant "be sentenced to a term of imprisonment" (para.(a)) and an order that the appellant "be imprisoned" (para.(b)). This distinction was said to be between "being sentenced to a term of imprisonment" (which was said to look only to the nature of the sentence) and being ordered to be imprisoned (which was said to require actual incarceration). Since a wholly suspended sentence did not require actual incarceration, in passing it the Magistrates' Court did not, so it was held, order that the appellant be imprisoned within the meaning of para. (b).
On the further hearing of the application by Bennison, Ashley, J., on 4 October 1991, granted leave to appeal, and on 25 October 1991 Bennison's appeal came before the Full Court accordingly. The Full Court gave its decision on the same day. It has not been reported. The Court proceeded upon the basis that, there having been no appeal from the decision of Ashley, J., it should assume that it had jurisdiction. The Court went on to deal with the appeal on its merits and allowed it. Whether it was appropriate to exercise jurisdiction and allow an appeal on the assumption that jurisdiction existed may be a question, but what was said by the Court about the grant of leave makes it clear that it was expressly leaving open the correctness of Ashley, J.'s decision.
The present applicant relies on Ashley, J.'s decision.
There was no discussion in Bennison, either by the primary judge or by the Full Court, of the effect of the circumstances that the appeal to the County Court had in that case been taken by the Director of Public Prosecutions and that paras. (a) and (b) of s.91(2) referred to the sentencing of "the appellant".
I have a clear view that the present application is incompetent. Parliament was in my opinion not using two different expressions in the two paragraphs of s.91(2) in order to distinguish between an immediate custodial sentence (to use the convenient phrase often employed in submissions on sentence) and other sentences. It was doing no more than what it has constantly and avowedly done in the last 20 years or thereabouts, namely, try to express itself shortly and in simple language. For years now Parliament has time and again chosen not to proceed in the old way (which did at least have the virtue of avoiding argument) of using the same expression for the same thing. Different words are often employed in modern legislation, usually for the sake of brevity, although on occasions, and paradoxically, the Benthamite principle that a different word should be used only to convey a different meaning seems to have been vanquished not by the desire for brevity but by what Fowler called elegant variation, or even by mere want of care.
In my view, Parliament, instead of repeating the relevant words of paragraph (a) with the insertion of a negative, so as to make paragraph (b) run "had not ordered that the appellant be sentenced to a term of imprisonment", for the sake of brevity made paragraph (b) run "had not ordered that the appellant be imprisoned".
The avenue of appeal now in question was first opened by s.142B of the Justices Act 1958, a provision introduced by s.4 of Act No.8034. That section made it a condition of the ability to seek leave to appeal that the County Court should have substituted a sentence of imprisonment for any other sentence imposed by a magistrates' court. In R. v. Latka[1] the Full Court held that the words "any other sentence" meant any sentence other than a sentence of imprisonment. Section 77 of the Magistrates' Courts Act 1971 used the same words, so far as material, in imposing the condition[2]. Section 77 is the immediate predecessor of s.91 of the Magistrates' Court Act 1989. The marginal note or heading to the former s.142B and s.77 was "Right of appeal where County Court substitutes imprisonment for other penalty" and the heading to the present s.91 is "Right of appeal if County Court substitutes imprisonment for other penalty", the only difference being in the conjunction The provisions of s.36(2A), (3) and (4) of the Interpretation of Legislation Act 1984 bear on the use that may be made of this.
[1][1973] V.R. 423.
[2]Section 77 was enacted by the Magistrates' Courts (Jurisdiction) Act 1973. It reproduced the words of s.142B, "substitutes a sentence of imprisonment for any other sentence imposed by [the lower court]", but departed from s.142B in other respects in consequence of criticisms made in Latka at p.426.
I have not found, nor have counsel, in the Parliamentary Debates any suggestion that the departure made from the verbiage of the former s.142B and s.77 in stating, in paras. (a) and (b) of s.91(2), the condition on which the ability to seek leave to appeal depends was intended to make any change in the law. In his Second Reading Speech on the Bill for the Act of 1989 (Hansard, vol. 393, Legislative Assembly, p.487) the Attorney-General described the Bill as drafted in plain English. I repeat that in my view the changes now under discussion merely represent an attempt to draft in simple terms.
Ashley, J. considered that the intention of s.91(2) was that a person who, on appeal to the County Court, was for the first time, as regards the offending in question, sentenced to immediate incarceration, should be able to seek leave to appeal. This raises the question of the effect, as regards the possibility of a further appeal, of a wholly suspended sentence passed by the County Court. If, for example, a person convicted and discharged by the Magistrates' Court is, on appeal to the County Court, given a wholly suspended two-year sentence of imprisonment, is it on this view impossible to challenge the sentence imposed by the County Court?
Mr Holdenson accepted that this would be a consequence of the acceptance of the approach which he advocated, and that it would be a rather strange one. Other seemingly strange results could be put forward. Mr Holdenson's concession with regard to the particular example given above (conviction and discharge followed by wholly suspended sentence) flowed from the fact that, on the approach which he put forward, a person given a wholly suspended sentence was not a "person sentenced to be imprisoned" within the meaning of the phrase in s.91(2) describing the prospective appellant.
Reference has been made in argument to s.27(5) of the Sentencing Act 1991, whereby in general a wholly suspended sentence must be taken to be a sentence of imprisonment for the purposes of all enactments, and to authorities dealing with the nature of a suspended sentence. I think it is enough to say that where on appeal the County Court passes a wholly or partly suspended sentence it is ordering that the appellant be sentenced to a term of imprisonment within the meaning of para. (a) of s.91(2) and that if the Magistrates' Court has passed a wholly or partly suspended sentence it has ordered that the appellant be imprisoned within the meaning of para. (b).
I should add that, had this application been competent, I should have had no hesitation in proposing that it be dismissed on the merits. I do not think any error has been shown in or in relation to her Honour's careful reasons for sentence, and indeed, as regards the result, I consider the sentence passed by her to be, if anything, merciful.
The application should be dismissed as incompetent and we should record the fact that the applicant has been on bail between 16 March 2001 and today.
ORMISTON, J.A.:
I agree. I have given anxious consideration to the reasoning of Ashley, J. in Re
Bennison's Application[3], but in the end I have concluded that the reasoning of the learned presiding judge should be preferred. It should be remembered that in this State, under s.27 of the Sentencing Act 1991, suspended sentences of imprisonment are taken to be sentences of imprisonment for all purposes, except in two limited circumstances. A sentence of this kind in this jurisdiction has always been understood, properly, as a serious sentence involving imprisonment and its effects are well-known. If there be a breach, the sentence is merely "restored" unless exceptional circumstances exist. Furthermore, the intent of sub-section (2) seems clear, once it is appreciated that the person given a right of appeal under the sub-section is "the person sentenced to be imprisoned", a shorthand expression far closer in form to "ordered ... be imprisoned" as used in para.(b), than to "sentenced to a term of imprisonment" as used in para.(a), to which it necessarily refers. Parliament could not have intended, by its use of language of this kind, to distinguish between different kinds of suspended sentence.
PHILLIPS, J.A.:
[3]Unreported, 2 October 1991.
I agree in the disposition of this matter proposed by the presiding judge, and for the reasons given by his Honour.
BROOKING, J.A.:
The order of the Court is that the application is dismissed as incompetent. The applicant will, of course, now remain in custody and resume the service of his sentence.
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