R v Ward

25 CLR 141

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF Criminal Law-Sentence-Habitual criminalDetention in reformatory prison-

Previous convictions for " indictable offence " - Summary convictions-Crimes Act 1915 (Vict.) (No. 2637), secs. 514, 515.

Sec. 514 of the Crimes Act 1915 (Vict.) provides that "(1) When any person apparently of the age of seventeen years or upwards is convicted of any indictable offence and has been previously convicted on at least two occasions of any indictable offence or offences the Judge of the Supreme Court or the Chairman of the Court of General Sessions before which such person is con- victed may declare that he is an habitual criminal and direct as part of his sentence that on the expiration of the term of imprisonment then imposed upon him he be detained during the Governor's pleasure in a reformatory prison." Sec. 515 provides that '(1) Where any person apparently of the age of seventeen years or upwards is convicted of any indictable offence (whether such person has been previously convicted of any offence or not) the Judge of the Supreme Court or the Chairman of the Court of General Sessions before which such person is convicted may if he thinks fit, having regard to the antecedents character associates age health or mental condition of the person convicted, the nature of the offence, or any special circumstances of the case-(a) direct as part of his sentence that on the expiration of the term of imprisonment then imposed upon him he be detained during the Governor's pleasure in a reformatory prison."

A person being convicted before a Judge of the Supreme Court of an indict- able offence, and having admitted that on three previous occasions he had

25 CLR 142

been summarily convicted by a Court of Petty Sessions of an offence which might have been prosecuted on indictment. was sentenced to a term of imprison- ment, declared to be a habitual criminal and directed to be detained in a reformatory prison during the Governor's pleasure. On appeal by the accused the Full Court, being of opinion that the previous convictions referred to in sec. 514 of the Crimes Act did not include summary convictions, quashed the sentence, substituted a sentence of equal duration and made a direction for detention in a reformatory prison pursuant to sec. 515. On an application by the Crown to the High Court for special leave to appeal,

Held, that special leave to appeal should be refused. Special leave to appeal from the decision of the Supreme Court of Victoria R. v. Ward, (1918) V.L.R., 418; 40 A.L.T., 28, refused.

APPLICATION for special leave to appeal.

On 26th February 1918 at the sittings of the Supreme Court for the hearing of criminal trials at Melbourne before Madden C.J. and a jury, Albert Ward was tried on presentment for stealing in a dwelling and receiving, and was found guilty of stealing in a dwelling. Upon his conviction he was further charged with and admitted (inter alia) three previous convictions by a Court of Petty Sessions for larceny. He was thereupon sentenced to imprisonment for two years with hard labour, and was declared to be a habitual criminal, and was ordered on the expiration of the term of imprison- ment then imposed upon him to be detained during the Governor's pleasure in a reformatory prison. On an appeal by Ward to the Full Court against the sentence and the decision of Madden C.J., the Full Court held that the words "convicted indictable offence " in sec. 514 of the Crimes Act 1915 (Vict.) did not refer to a summary conviction before Justices for an offence which might be tried on indictment. The Court therefore allowed the appeal, ordered the sentence to be quashed, and in substitution therefor passed a sentence of equal duration, and, pursuant to sec. 515 of the Crimes Act 1915, directed that on the expiration of the term of imprisonment Ward should be detained during the Governor's pleasure in a reformatory prison R. v. Ward 1.

The Crown now applied for special leave to appeal to the High Court from the decision of the Full Court.

1(1918) V.L.R., 418 40 A.L.T., 28.

25 CLR 143

Alec Thomson, for the applicant. Larceny being an indictable offence, the case comes within the words of sec. 514 of the Crimes Act 1915, and there is no reason for putting any limitation on their meaning.

[HIGGINS J. The application being for special leave, you must show that there is a real difference in favour of the prisoner between the sentence imposed by Madden C.J. and that imposed under sec. 515 by the Full Court.]

There may be some advantage to the prisoner in not being declared a habitual criminal. The importance of the question arises from the fact that other prisoners have been sentenced under sec. 514 in precisely similar circumstances, and, further, unless the decision of the Full Court is reversed Judges on criminal trials will follow it.

PER CURIAM. We do not think that we can grant special leave in this case. It must not be supposed that we express any opinion upon the question of the construction of sec. 514.

Special leave to appeal refused. Solicitor, E. J. D. Guinness, Crown Solicitor for Victoria.

This matter concerned an application for special leave to appeal to the High Court of Australia from a decision of the Full Court of the Supreme Court of Victoria. The applicant, the Crown, sought to appeal against the Full Court's decision in the case of R v Ward, which had quashed a sentence imposed by Madden C.J. The dispute arose from the interpretation of sections 514 and 515 of the Crimes Act 1915 (Vict.) concerning the declaration of an habitual criminal and detention in a reformatory prison.

The legal issue before the Full Court, and subsequently before the High Court on the application for special leave, was whether previous summary convictions for an offence that could have been prosecuted on indictment qualified as "indictable offence" convictions for the purposes of section 514 of the Crimes Act 1915. Section 514 allowed for a declaration of habitual criminality and detention during the Governor's pleasure if a person was convicted of an indictable offence and had at least two prior convictions for indictable offences. Section 515 provided a broader discretion for detention during the Governor's pleasure based on various factors, irrespective of prior convictions.

The Full Court reasoned that the term "indictable offence" in section 514 referred specifically to offences that had been prosecuted on indictment, and did not extend to summary convictions for offences that were merely capable of being prosecuted on indictment. Consequently, the Full Court held that the respondent, Albert Ward, who had admitted three previous summary convictions for larceny, did not meet the criteria for being declared a habitual criminal under section 514. The Full Court quashed the sentence imposed by Madden C.J., substituted a sentence of equal duration, and directed detention in a reformatory prison pursuant to the broader provisions of section 515. The High Court, in refusing special leave to appeal, stated that it was not expressing any opinion on the construction of section 514.

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