RJM v The Police

[2013] HCATrans 75

[2013] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A19 of 2012

B e t w e e n -

RJM

Applicant

and

THE POLICE

Respondent

Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 APRIL 2013, AT 10.36 AM

Copyright in the High Court of Australia

MR G.P.G. MEAD, SC:   If your Honours please, I appear with MR M.J. LUTT, for the applicant.  (instructed by Legal Services Commission (SA))

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with MR K.W. SOETRATMA, for the respondent.  (instructed by Crown Solicitor (SA))

HAYNE J:   Yes, Mr Mead.

MR MEAD:   This case involves a question of law which requires the consideration of this Court.  It is a matter of public importance.  It is in the interests of the administration of justice in the Youth Court of South Australia that this Court should consider the Full Court judgment.  The question the appeal raises, whether section 31(4) of the Criminal Law (Sentencing) Act prevents the imposition of cumulative sentences on youths such that section 18A of the Criminal Law (Sentencing) Act cannot be used to impose a sentence which is composed of elements which have been accumulated to give the final result, is then imposed as a single sentence using section 18A.

The importance of this question for the administration of justice can be shortly stated.  The Youth Court is often called upon to sentence youths who have pleaded or been found guilty of multiple offences.  It is a daily occurrence.  Whether or not cumulative sentences can be imposed is an important practical question relevant to the day‑to‑day operations of the Youth Court.  On the interpretation of the legislation for which our opponents contend, judicial officers will be able to choose whether or not to impose cumulative sentences whereas our contention is that it is clearly Parliament’s intention that the accumulation of sentences is one instrument of a sentencing that is not available to the Youth Court judiciary.

South Australian legislature has, over many years, evinced an intention that courts should sentence youths in a different way to adults.  This intention is manifested in a number of ways.  Section 3 of the Young Offenders Act mandates a specific philosophy for the sentencing of youths.  The section speaks of care, correction and guidance where in adult courts the relevant principle is punishment, parents and retribution.

Secondly, the legislation prohibits the sentencing of a youth to imprisonment.  It provides that the ultimate sanction is a period of detention in a training centre.  It limits the potential length of a sentence of detention to three years where a judge is presiding but two years where it is a magistrate.  These differences in approach have existed since the advent of the more modern forms of juvenile justice legislation in the 1970s, but through the various changes and developments in juvenile justice there has never been a specific provision enabling the imposition of cumulative periods of detention.

Eventually, section 31 of the Sentencing Act was enacted in 1988.  At the time, the Sentencing Act said nothing about Youth Court sentences because at that time the Children’s Protection and Young Offenders Act was a complete code in relation to the sentencing of young offenders.  In 1996, the Young Offenders Act was passed and the scheme was reversed so that where once Sentencing Act provisions would apply to youths only where it was expressly stated that they would, new amendments said that the Sentencing Act applied to youths unless otherwise stated.  

Section 3A of the Sentencing Act was introduced and, among other things, it says that if there is a conflict between Sentencing Act provisions and the young offenders’ legislation, then the young offenders’ legislation applies.  Parliament, while applying most of the rest of the Sentencing Act to youths, specifically provided in section 31(4) that the power to impose cumulative sentences does not apply to youths unless the youth is being sentenced as an adult. 

By the time it did that in 1996, over in the adult jurisdiction, section 18A had been enacted and had by then been operating for four years.  By the time the Parliament passed section 31(4) prohibiting the imposition of cumulative sentences on youths, it was well aware that section 18A was one of the Sentencing Act provisions which could now, by virtue of the 1996 amendments, apply to youths.  As the Full Court said in this case, section 18A is a “machinery or procedural” provision available to help simplify complicated sentencing in cases of multiple offences.  But it is just that, a machinery provision.  It should not have been interpreted, as the Full Court interpreted it, to subvert the policy and practice enshrined in section 31(4) of the Sentencing Act and section 3 of the Young Offenders Act. 

In our respectful submission, the Full Court in referring to the common law principles which ground the exercise of section 18A or section 31(1), failed to have regard to the background to the exercise of the section 18A power in this case, namely, the legislative background provided by the Young Offenders Act.  The Full Court said at paragraph 18 – that is at page37 of the application book, if your Honours please:

The limits . . . and the policy set out in s 3, make the process of accumulation of sentences under s 31 of the Sentencing Act inappropriate in most cases, when a court sentences a youth as a youth.

Our submission is that those provisions go much further than that.  Together with section 31(4), they actually prohibit the imposition of cumulative sentences.  The objects set out in section 3 of the Young Offenders Act, together with section 23 of the Young Offenders Act and section 31(4) of the Sentencing Act, combine to show a clear legislative intention.  Section 18A should not be available to avoid the express prohibition in section 31(4).

The Court of Criminal Appeal in South Australia has, in several judgments, encouraged the practice of sentencing judges when using section 18A to impose one sentence, first considering the notional sentence appropriate for each offence before considering whether to make the sentences cumulative or concurrent and then applying the totality principle before fixing the aggregate single sentence.

GAGELER J:   May I ask, am I correct in understanding your argument to be that section 18A is to be read down by reference to section 31(4)?

MR MEAD:   That is correct, your Honour.  We say that on the basis of the legislative history that leads up to the passage of section 31(4) and the relevant policies expressed in section 3 of the Young Offenders Act.

GAGELER J:   Section 18A was in the Act at the time that section 31(4) was enacted?

MR MEAD:   That is right.  We say that the Full Court in saying that it is inappropriate to cumulate sentences when sentencing youths is - when deciding whether to do that actually the court is wrong in saying it is just approving it – it is appropriate…..that the legislation really sets out that it should not ever be done, that it should never be the case that cumulative sentences should be imposed in Youth Court matters.

I was going on to say that the Court of Criminal Appeal in this State has given directions, in a sense, about the way in which sentences should be constructed when using section 18A, that is to impose a notional sentence appropriate for each offence or considering whether to accumulate, then applying the totality principle for fixing the aggregate single sentence.  This avoids the danger that a single sentence may lack a proper basis or not appropriately reflect the overall criminality involved.

Although this way of approaching the sentencing task is not a rigid formula, and it has been said it is not an error of law not to take that approach, it was indeed the approach adopted by the magistrate in this case and, of course, it has provided the transparency which enables us to identify what we say is the sentencing error. 

We therefore make no criticism of the magistrate’s approach other than the critical matter that founds this application that in fixing three sentences - seven months, three months and two months respectively - the magistrate’s next step should have been to impose a sentence of seven months, having regard to section 31(4).  That, we say, is the plain and clear meaning of section 31(4) and it is the meaning which the Full Court failed to ascribe to it. 

Another practical difficulty that the Full Court’s decision raises is the potentiality for different outcomes according to which machinery provision the sentencer decides to adopt.  The problem is ‑ it is illustrated in the present case – section 31(4) is the governing provision and the magistrate would have imposed a sentence of seven months in respect of the most serious offending with the other two sentences of three months and two months being imposed concurrently.

If, however, section 18A is available to circumvent section 31(4) then, as occurred here, the result is a longer sentence by reason of the accumulation that the Full Court says section 18A permits.  That, we say, is not the result intended by the plain and clear meaning of section 31(4).  The Full Court’s decision has failed to give effect to the legislative intention by reason of its interpretation of the interrelationship between section 31(4) and section 18A. 

That failure has the result that the administration of justice in respect of the sentencing of young offenders will now proceed on an erroneous footing in South Australia by reason of the Full Court’s decision.  For that reason, we say that this application should be granted so that the Court can consider the issues raised by our application.

HAYNE J:   Yes, thank you very much, Mr Mead.  We will not trouble you, Mr Solicitor.

The Full Court’s decision in this matter is not attended by doubt.  Special leave to appeal is refused.

The Court will adjourn to reconstitute.

AT 10.48 AM THE MATTER WAS CONCLUDED