Ryan v the Queen

[1982] HCA 30

HIGH COURT OF AUSTRALIA

Gibbs C.J., Stephen, Aickin, Wilson and Brennan JJ.

RYAN v. THE QUEEN

(1982) 149 CLR 1

11 May 1982

Criminal Law (Vict.)

Criminal Law (Vict.)—Sentence—Appeal—Conviction on two or more counts—Appeal allowed on one count—Power of appellate court to affirm sentence or pass such sentence as might be warranted by verdict on count on &hich appellant properly convicted—Whether power to increase sentence on count not subject to appeal—Joinder of charges—Improper joinder—Relevance to the power of appellate court to increase sentence on count on &hich appellant properly convicted—Crimes Act 1958 (Vict.), s. 569(1).

Decisions

May 11.
The following written judgments were delivered: -
GIBBS C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Wilson. I entirely agree with them and would accordingly grant special leave to appeal and allow the appeal. (at p3)

STEPHEN J. Section 569(1) of the Crimes Act 1958 (Vict.) has for many years been a part of the criminal law of Victoria and has its equivalents in the statute law of other Australian States and of England where it finds its origin in s. 5(1) of the Criminal Appeal Act 1907 (U.K.). Yet so seldom has this provision been applied that the experienced members of the Court below, the Victorian Court of Criminal Appeal, have described it as "rarely, if ever, invoked in this Court". Of its English equivalent Lord Goddard said in 1956 that, in his experience, it had never previously been sought to be applied: Reg. v. Lovelock (1956) 1 WLR 1217, at p 1218; (1956) 3 All ER 223, at p 223; 40 Cr App R 137, at p 139 . The provision does not appear to have been the subject of any Australian authority and although applied in Lovelock, and later in Reg. v. Craig(5), the question whether it was properly applied in such circumstances as existed in Lovelock was expressly left open by their Lordships in the later Privy Council appeal of Reg. v. Edirimanasingham (1961) AC 454 . (at p3)

2. Section 569(1) reads as follows:
"If it appears to the Full Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in subsitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted." (at p4)

3. The terms of the sub-section require the following elements before it can be applied: an appellant, an indictment containing several counts or parts, and a situation in which it appears to the Full Court both that there was no proper conviction on some count or part and that on some other count or part there was a proper conviction, one in respect of which "the Court considers that the appellant has been properly convicted". When these elements are present the Court may either affirm the original sentence or pass some other appropriate sentence in substitution for it. Whatever doubts there may be about the meaning of "parts" of an indictment as employed in the sub-section (as to which see Reg. v. Allingham &Bandy (1954) NZLR 1223 )), they are of no present concern; it is with an indictment containing distinct counts that we are here concerned. (at p4)

4. The sub-section's reference to the affirming of the original sentence and to the passing of a sentence in substitution for it seems to presuppose one sentence per indictment; yet at the same time the indictment in question must necessarily be one containing several counts. This would suggest that the sub-section is concerned only with those cases in which one general sentence is imposed following conviction on several distinct counts. However counsel informed the Court that such general sentences have long been unknown in Victoria; their imposition would certainly ill accord with the terms of modern Victorian legislation providing for the fixing of minimum terms of imprisonment before eligibility for parole can arise; and see per Barry J. in In re Director of Penal Services' Application (1958) VR 1 . Moreover the English equivalent of s. 569(1) has not been treated as confined to the case of such general sentences, which as will appear hereafter are by no means unknown there. Accordingly, if the sub-section can be seen to be capable of some wider operation which is both just and expedient, this Court should so interpret it; to do otherwise will be to deny to it any effective operation not only at the present day but probably also when first enacted in Victoria in 1915, counsel for Ryan being unable to make good their submission that in 1915, or for that matter at any earlier time, general sentences were in common use in Victoria. (at p4)

5. At the same time the provision should clearly enough not be given any wide operation which both strains its language and is likely to lead to any suggestion of injustice to a convicted person. It is no light thing for an appellate court to vary the sentence pronounced by a trial judge against which no appeal has been taken. If it is to be done at all quite clear statutory authority should be found. (at p5)

6. In seeking the true area of application of the sub-section it is material to recall that, in common with other jurisdictions, Victorian law requires that charges for any offences may only be joined in the one indictment if they are "founded on the same facts or form or are a part of a series of offences of the same or a similar character" - par. 2 of the Rules contained in the Sixth Sch. to the Crimes Act, as made applicable by ss. 366 and 367 of that Act. Section 569(1) should be understood in the context of properly drawn indictments, conforming to these Rules. (at p5)

7. In the present case Ryan's indictment contained six counts. Two related to trafficking in heroin; the other four were counts of handling stolen goods and had no such connexion with the trafficking charges as would, under the Rules, have justified their joinder in the same indictment. No objection was taken to this misjoinder but its occurrence has served to emphasize the consequences that may arise from certain applications of s. 569(1). Ryan was convicted and sentenced to four years' imprisonment on one of the two trafficking counts and to six months' imprisonment on each of the four handling counts, two of which were made cumulative upon the other two, resulting in an effective term of five years' imprisonment, a minimum term of three and a half years being fixed before he would become eligible for parole. Ryan's only appeal, against conviction on the trafficking count, was successful and a new trial was ordered. The Court of Criminal Appeal then considered what, if anything, should be done about the remaining sentences, on the handling charges, and about the minimum term of three and a half years, which clearly was no longer appropriate. The Court turned to s. 569(1) and, relying on the authority of Lovelock, concluded that that sub-section was applicable. It accordingly substituted for the sentences of six months each on the four handling counts four sentences of eighteen months each, two of these being made concurrent with two others; this produced an effective total sentence of three years. A new minimum term of two years before becoming eligible for parole was also fixed. The outcome was therefore that, despite the absence of any appeal on the handling charges, the sentences imposed on those counts, the circumstances of which do not appear to have been in any sense before the Court, were much increased in consequence of Ryan's successful appeal on the trafficking charge, which happened to have been incorrectly joined with them in the one indictment. (at p6)

8. It should also be noted that Ryan's ultimate fate on that trafficking count was not resolved by the success of his appeal; it might be that at the new trial he would be convicted, in which case the overall pattern of sentences imposed by the trial judge, thought by the Court of Criminal Appeal to require adjustment following the quashing of the conviction on the trafficking charge, would require to be taken into account when sentencing Ryan on the trafficking count. (at p6)

9. The Court of Criminal Appeal acted as it did because it concluded that but for the imposition of a custodial term of four years on the trafficking charge longer terms would have been imposed on the handling charges, so that, with the quashing of the former, the latter were seen to be inadequate and in need of increase. Whether or not this was a tenable inference from the terms of the whole of the judgment of the trial judge, it is not easy to find explicit support for this conclusion in what he said. And in any event the question remains whether, in the absence of any appeal, either against conviction or sentence, on the handling charges, there existed any authority to vary the sentences imposed on those charges. The only possible source of such authority must be in s. 569(1). (at p6)

10. I consider that the Court of Criminal Appeal erred in regarding s. 569(1) as applicable to the case before it. My reasons for this conclusion may best be stated by starting with an examination of the reasoning which led the Court of Criminal Appeal to apply the sub-section in this case. Their Honours, not having been referred to Edirimanasingham (1961) AC 454 , cited Lovelock (1956) 1 WLR 1217; (1956) 3 A11 ER 223; 40 Cr App R 137 as relevant authority on the operation of s. 569(1) and went on to describe the circumstances of Lovelock's case as analogous to those in the present appeal. True it is that the two cases have elements in common: conviction and sentence on more than one count, the conviction on one count quashed in appeal and the absence of any appeal on another count. But an important difference between the cases lies in the relationship to each other of the several counts in each case. Lovelock was charged with attempted rape and indecent assault, both arising out of one and the same attack. The conviction of the first count was quashed for want of evidence of any attempt to rape but the evidence amply supported the conviction on the second count. Lovelock was undoubtedly a case of a proper joinder of counts. The significance of this, for present purposes, is that in that case the Court of Criminal Appeal, despite the absence of any appeal against conviction on the second count of indecent assault, could be left in no doubt but that that conviction was proper; it was readily able to and did conclude that Lovelock "was properly convicted on the second count" (1956) 1 WLR, at p 1219; (1958) 3 A11 ER at p 224; 40 Cr App R, at p 140 . (at p7)

11. The present case was very different. Mr. Flanagan, who appeared for the Crown, did not contend that the handling counts were properly joined with the trafficking counts; nor could he. There was little connexion between the two. A consequence was that in the absence of any appeal on the handling counts the Court of Criminal Appeal was in no position to form any conclusion about the convictions on those counts; nor did it purport to, the hearing before it provided no occasion for any examination of the evidence concerning them nor for the hearing of any argument about them. It follows that the Court was never placed in a position in which to conclude, in terms of s. 569(1), that "it appears to the Full Court that (the appellant) . . . has been properly convicted" on those counts; or that "the Court considers that the appellant has been properly convicted" on those counts. Instead the Court was left in a position in which it knew no more than that at trial Ryan had pleaded guilty to one and not guilty to the other three of those counts and had been convicted and sentenced on all of them. (at p7)

12. The contrast with the facts of Lovelock are striking and are in my view sufficient in the present case to distinguish it on the facts, even if, despite what was said in Edirimanasingham, Lovelock should still be regarded as authority on its particular facts. That same contrast illustrates that when there has been a misjoinder of counts and no appeal on the misjoined counts an appellate court will usually have no occasion to satisfy itself of the correctness of the convictions on those counts. On the other hand, where there has been no misjoinder and where the various counts all arise out of the one occurrence the mere absence of appeal on some counts will not, at least in cases such as Lovelock, preclude an appellate court from so satisfying itself. In the present case the misjoinder of the handling counts did, however, mean that on an appeal confined to the trafficking count the Court of Criminal Appeal was in no position to conclude that the appellant had been properly convicted on the handling counts. (at p8)

13. In the judgment of the Court of Criminal Appeal reference is made to two other instances, in addition to Lovelock, of the substitution of sentences in circumstances said to be similar to those in Lovelock, although their Honours say that these two cases may not necessarily have relied upon the statutory provision here in question. But the first of these cases, O'Grady (1941) 28 Cr App R 33 , was in fact a very different case. O'Grady had been convicted and sentenced to death for a war-time offence under the Treachery Act and had also been convicted, but with no further sentence imposed, on six other lesser counts of the indictment. It would seem from the report that she appealed on all seven counts; only on the capital count and on one other were the convictions quashed. The Court of Criminal Appeal then proceeded to impose one term of penal servitude in respect of all the remaining five convictions. This case accordingly fell into the second of the two categories of cases which their Lordships in Edirimanasingham (1961) AC, at p 462 regarded as clearly proper applications of s. 569(1), the first being where only one undifferentiated general sentence is passed in respect of all of a number of convictions and the second being where, as with a sentence of death or of imprisonment for life, such a sentence is passed on a major count and no sentence at all is passed on other, less serious counts. The case throws no light either upon Lovelock or upon what was done in the present case. (at p8)

14. The second case, that of Hervey and Goodwin (1939) 27 Cr App R 146 , involved no exercise of the English equivalent of s. 569(1). The Court of Criminal Appeal, having quashed two of four convictions against which Goodwin had appealed, was confronted by a general sentence of two years' imprisonment imposed in respect of all four convictions. The Court treated his appeal, which was against conviction only, "as if it had included an appeal against sentence" (1939) 27 Cr App R, at p 148 , so that it might by that means obtain jurisdiction to reduce to eighteen months the sentence imposed at trial - see Criminal Appeal Act 1907 (U.K.), s. 4(3). Accordingly this case too provides neither support for Lovelock nor for the course adopted in the present case, in which there was no appeal against conviction or sentence on any of the handling counts. It is of interest to note in passing that both of these cases happen to provide instances of the imposition of general sentences, by the Court of Criminal Appeal in O'Grady and by the trial judge in Hervey and Goodwin. (at p9)

15. This examination of the judgment below, of its consequences and of the authorities there relied upon suggests that the Court of Criminal Appeal has given to s. 569(1) an unduly wide application, neither justified by its terms nor supported by authority. This examination also suggests two possible views of the proper scope of s. 569(1), both of which lie between the two extremes of confining it, as its words might suggest, to the case of general sentences or of giving it the wide application favoured in the Court of Criminal Appeal. The first of these possible views would exclude its application whenever to apply it would, in their Lordships' words in Edirimanasingham, involve "increasing a sentence passed at the trial on some other count with regard to which there has been no appeal against sentence". The second would only exclude its application where the circumstances were such that the appellate court could not determine the correctness of the conviction on the "other counts", leaving it applicable in circumstances such as Lovelock despite the absence of any appeal on the "other counts". (at p9)

16. The state of the authorities and the cryptic language of the sub-section leave it open to this Court to adopt either of these views. In my view the needs of justice will be met and expediency will be best served by preferring the latter of these two views. This may be seen from a brief consideration of those cases in which it would both seem appropriate that s. 569(1) should be applied and in which at the same time its application will do no injustice to an accused. (at p9)

17. The common case of its proper application will be where, following conviction and sentence on several counts, appeals against conviction on all counts are taken and one or more succeeds. This is the example to which Lord Goddard referred in his exposition of the scope of this provision in Lovelock (1956) 1 WLR, at p 1218; (1956) 3 A11 ER, at p 224; 40 Cr App R, at pp 139-140 , although, as it happened, the facts of Lovelock did not fit his Lordship's example since there was in fact no appeal taken from the conviction on the second count in Lovelock. (at p9)

18. Then there are, I think, three special cases in which the sub-section may properly apply despite the absence of appeals on some counts of an indictment. The first is where, sentence having been passed on the major count, no sentence is imposed on the lesser counts on which an accused has been convicted; death sentences and sentences of life imprisonment on a major count provide instances of this. Despite the absence of any appeals against conviction on the lesser counts (and there could be no appeals against sentence where none had been imposed), Edirimanasingham (1961) AC 454 is authority for the application of s. 569(1) in such a case. The second is where a general sentence is passed following conviction on a number of counts and the subsequent successful appeal is confined to some only of those counts. Since general sentences will rarely, if ever, be encountered in Victoria this type of case merits no elaboration save to refer to what is said of it in Edirimanasingham. The actual facts in Lovelock provide an example of the third of these special cases; where the counts are so closely connected that, despite the absence of any appeal on one or more counts, the appellate court is nevertheless able to satisfy the requirement of s. 569(1) that it should be in a position to conclude that the convictions on those counts were proper. And of course that requirement must also be satisfied in the first two of these special cases if the requirements of the sub-section are to be satisfied. (at p10)

19. So far as the outcome of the present appeal is concerned the adoption of either of these two views will have the same result, the appeal must be allowed; there was here neither any appeals on the handling counts nor did the appellate court have any opportunity of determining the correctness of the convictions on those counts. Only the widest possible view of the operation of s. 569(1), one which I have rejected, could justify its application in this case. (at p10)

20. Since I regard the Court of Criminal Appeal as lacking power in this case to vary the sentences of six months on each of the four handling counts it follows that I would grant special leave to appeal and would allow this appeal, restoring the sentences imposed on those four counts. They involved concurrency in the sense that each of two of them was to be served concurrently with each of two others of them; there seems to be no occasion to vary that concurrency. However, the trial judge also ordered, in conformity with s. 190 of the Community Welfare Services Act 1970 (Vict.), that there be a minimum term of three and a half years during which Ryan would not be eligible to be released on parole. The Court of Criminal Appeal appreciated that this order could not stand once the trafficking count was quashed; it instead substituted a minimum term of two years, now applicable only to the four handling counts. Presumably it was contemplated that should Ryan be convicted on the trafficking count at his new trial there would be taken into account, in regard to sentence, concurrency and the fixing of a minimum terms, the sentence imposed and the minimum terms fixed by the order of the Court of Criminal Appeal on the four handling counts. I make the same assumption in relation to the four sentences of six months imposed by the trial judge and which I would restore. With concurrencies these amount to a total effective term of twelve months. Section 190 of the Community Welfare Services Act provides that no minimum term may be fixed in the case of sentences of less than twelve months and, as I would understand it, the provisions of sub-s. (2), requiring the aggregation of sentences for certain purposes, does not operate so as to transform the four sentences of six months each into anything more than six months' sentences for the purposes of sub-s. (1). Accordingly no question of fixing a new minimum term arises. Had it arisen, I would regard s. 190 as applying to the case of any substituted sentence imposed on appeal in the same way as it does to sentences imposed at trial. Equally, I regard both the original minimum term and that substituted for it by the Court of Criminal Appeal as each in turn falling with the sentences themselves, which, in the words of s. 190(1), they are said to be "part of". (at p11)

21. I would allow this appeal, granting special leave accordingly, and would restore the four sentences on the handling counts imposed by the trial judge, including the concurrencies ordered by him making a total effective term of twelve months. No minimum term is fixed. (at p11)

AICKIN J. This application for special leave raises, apparently for the first time in Australia, the question of the meaning and the scope of operation of s. 569(1) of the Crimes Act 1958 (Vict.) which is in the following terms:
"If it appears to the Full Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted."
That provision was enacted in Victoria by the Criminal Appeal Act 1914 (Act No. 2564) s. 5 and then re-enacted in the Crimes Act 1915 (Act No. 2637) as s. 595(1). It was subsequently re-enacted without amendment, though bearing different numbers, as the Crimes Acts in the consolidations of 1929 and 1958. It was and still is in the same terms as those of s. 5(1) of the Criminal Appeal Act 1907 (U.K.), 7 Edw. 7. c. 23, now replaced by s. 4 of the Criminal Appeal Act 1968 (U.K.). The same provision is to be found in the Criminal Appeal Act 1912-1969 (N.S.W.) as s. 7(1) and see also The Criminal Code of Queensland, s. 668F, which was added to by the Criminal Code Amendment Act of 1913, ss. 3 and 10, and in legislation in other States. (at p12)

2. The Criminal Appeal Act 1914 was the first provision in Victoria for appeals properly so called in criminal cases, though the procedure for Crown cases reserved derived from the Crimes Act 1890 remained in operation. It is important to note the provisions of s. 4(2) of the Criminal Appeal Act 1914 which was as follows:
"Subject to the special provisions of this Act the Full Court shall, if they allow an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had." (at p12)

3. The circumstances out of which this application arises may be shortly stated. The applicant was tried on an indictment containing two counts of trafficking in heroin and four counts of handling stolen goods. He was convicted on one count of trafficking in heroin and on all counts of handling stolen goods. He was sentenced to four years' imprisonment on the former count, and six months' imprisonment on each of the latter. The sentences on two of the handling counts were made cumulative on each other and on the four year sentence, and the remaining two sentences were concurrent with the other sentences. The total was thus five years and the trial judge directed that the applicant should serve a minimum of three years and six months before being eligible for parole. (at p12)

4. The applicant appealed to the Court of Criminal Appeal of Victoria against the conviction for trafficking in heroin but not against the convictions or sentences on the handling charges. No question was raised as to whether the several charges were properly joined in the one indictment. The appeal against conviction on the trafficking charge was allowed by the Court of Criminal Appeal which quashed the conviction and ordered a new trial. The Court then considered the position of the sentences on the other charges which amounted together to one year's imprisonment but with the direction that the applicant serve a minimum of three years and six months before being eligible for parole. Thus some change was obviously necessary. (at p12)

5. The Court of Criminal Appeal took the view that if the applicant had been charged and convicted only on the four counts of handling stolen goods he would have received a sentence of more than twelve months. The Court, in reliance on s. 569(1), then ordered that there be substituted for the sentences imposed by the trial judge on those four counts sentences of eighteen months on each count, two terms to be cumulative and two concurrent. In the result the total sentence was three years and the Court fixed a non-parole period of two years. (at p13)

6. There is no reported case of the Victorian section having been used and counsel for the Crown was not aware of any occasion on which it had been used. Fifty years went by after the English Act was passed before any case was reported which involved its application. In Reg. v. Lovelock (1956) 1 WLR 1217; (1956) 3 A11 ER 223; 40 Cr App R 137 , the accused was charged on two counts and pleaded guilty on the second count but not guilty on the first. He was found guilty and was sentenced to six years on the first count, and two years on the second, the sentences to be served concurrently. He appealed against his conviction on the first count only. His appeal was allowed and the conviction quashed. The Court of Criminal Appeal in reliance on s. 5(1) of the Criminal Appeal Act, 1907 then substituted a more severe sentence on the second count. Lord Goddard C.J. (1956) 1 WLR, at p 1218; (1956) 3 A11 ER, at p 224; 40 Cr App R, at pp 139-140 explained the section as directed to a situation where a prisoner is convicted on several counts and receives a substantial sentence on the first and principal counts, and lesser and concurrent sentences on the other counts, and where the conviction on the first count is set aside on appeal. He said that, where there was little difference in the merits on each count, the section permitted the Court of Appeal "to pass an adequate sentence" on the other counts. (at p13)

7. It will be convenient, before returning to the significance of that decision, to consider the other cases in which the English section and its equivalent in other jurisdictions have been applied. (at p13)

8. The next case to be mentioned is Reg. v. Craig (1967) 1 WLR 645; 51 Cr App R 8 . Craig was charged on six counts and convicted on four and given sentences of five years, three years, nine months and nine months on the third, fourth, fifth and sixth counts respectively, all of which were concurrent. He appealed against the conviction on the third count only but against the sentence on each count. The Court of Criminal Appeal allowed the appeal on the third count and quashed the conviction and the five-year sentence. In the exercise of the power given by s. 5(1) they substituted a sentence of four years for the three-year sentence on the fourth count. That case differed from the present case and from Lovelock in that all the counts on which sentences had been imposed were before the Court. (at p14)

9. The remaining case in which an equivalent section was considered is the decision of the Privy Council in Reg. v. Edirimanasingham (1961) AC 454 . The accused had been convicted on one count of murder and on two counts of attempted murder. He was sentenced to life imprisonment on the count of murder, and no sentence imposed on the remaining counts. The conviction for murder was quashed on appeal but there was no appeal in respect of the convictions of attempted murder. The Court of Appeal of Ceylon held that it had no power to impose any sentence on those two counts. In giving the reasons of the Privy Council on appeal by the Crown, Lord Tucker said (1961) AC, at p 462 :

". . . where the sentence passed on the appellant at the trial . . . has been quashed, the words of the subsection in their ordinary and natural meaning appear to their Lordships to confer power on the Court of Criminal Appeal to substitute a proper sentence for that which has been quashed, which can only be done by passing sentence on the remaining good counts . . . It is not necessary to express any opinion as to whether or not the subsection warrants the court in increasing a sentence passed at the trial on some other count with regard to which there has been no appeal against sentence."

Their Lordships thus reserved the question which arises in the present application, and which had arisen in Lovelock. There appear to have been no subsequent decisions on the point. (at p14)

10. It is to be remembered that in England there was in 1907 and in 1967 no power to order a new trial after a conviction had been quashed, but a very limited power was given by the Criminal Appeal Act 1968, s. 7(1). The position therefore differs from that in Victoria, to which I referred above. One anomalous feature of the present case is that the Court of Criminal Appeal not only ordered a new trial, upon which the applicant may be convicted and sentenced to a term of imprisonment, but also ordered the sentences on the other charges to be increased. If the accused were to be convicted on the new trial, the trial judge would then impose a sentence appropriate to that offence alone and the circumstances in which it was committed. Under the Crimes Act handling stolen goods is a felony and under the Poisons Act 1962 trafficking in heroin is a misdemeanour. If the accused were convicted on the new trial for trafficking in heroin and were still serving the sentences imposed by the Court of Criminal Appeal for handling stolen goods, s. 478(1) of the Crimes Act would authorize the trial judge to impose a sentence to commence on the expiration of those sentences. In the light of those considerations it can seldom be appropriate to use s. 569(1) of the Crimes Act in a case where a new trial has been ordered under s. 568(2). (at p15)

11. The question which arises is whether s. 569(1) has any application in a case where, although the accused is convicted on several charges, he appeals in respect of only one conviction, which may often be in respect of the most serious offence and have involved the longest sentence. The Court of Criminal Appeal thought it did, relying on Lovelock for that view. In Lovelock (1956) 1 WLR 1217; (1956) 3 A11 ER 223; 40 Cr App R 137 it was assumed rather than decided that the section applied where there was an appeal against one conviction but no appeal against conviction or sentence on any other charge or other charges, no reasons being given for the construction adopted. (at p15)

12. In my opinion the words of the sub-section do not bear that meaning. The opening phrase, "if it appears to the Full Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment", cannot in my opinion apply where the Court of Criminal Appeal does not have before it for consideration the convictions on the other count or counts to which the sub-section refers. I am unable to see how it can appear to that Court that an appellant was properly convicted when the propriety of the conviction is not before it. The absence of an appeal by the accused is not a sufficient basis for an assumption that he was "properly convicted". The words are however apt to apply to a case where the appeal is against conviction on two or more counts and will be applicable only where the appeal is successful on some but not all counts. With all respect I am unable to agree with the conclusion reached in Lovelock. (at p15)

13. If it is thought that the Crown may be placed at a disadvantage by this view in cases where the trial judge is regarded as having imposed too small a sentence in respect of the counts upon which the appellant did not appeal, the remedy lies in the hands of the Crown itself. There would be no obstacle to the Crown appealing against the sentence on such counts. (at p15)

14. It may be that it would be preferable that sentences should be imposed appropriate to each individual count as if it stood alone, the trial judge making such order as to concurrent serving of sentences as he may think appropriate. That however is a matter for the trial courts to decide for themselves. (at p16)

15. This application raises an important and novel point which warrants the grant of special leave to appeal. In my opinion the appeal should be allowed and the order of the Court of Criminal Appeal increasing the sentences on counts 3, 4, 5 and 6 set aside. (at p16)

WILSON J. The applicant was presented for trial on an indictment containing two counts of trafficking in heroin and four counts of handling stolen goods. After trial, he was convicted on one count of trafficking and the four counts of handling stolen goods. He was sentenced to four years' imprisonment on the trafficking count, and six months' imprisonment on each of the handling counts. The sentences on two of the handling counts were made cumulative on each other and on the sentence of four years, and the remaining sentences were concurrent. These sentences resulted in an effective sentence of five years' imprisonment, in respect of which the learned trial judge directed that the applicant serve a minimum term of three years and six months before becoming eligible for parole. (at p16)

2. It does not appear from the materials before the Court that all the charges which were included in the one indictment are "founded on the same facts or form or are a part of a series of offences of the same or a similar character" (Crimes Act 1958 (Vict.), as amended, Sixth Sch., r. 2). However, the irregularity, if any, of the joinder or of the joint trial on the indictment was not the subject of any objection at the trial or subsequently, and is not material to the problem before the Court. (at p16)

3. The applicant appealed to the Court of Criminal Appeal in Victoria against his conviction on the trafficking charge. The appeal was successful, resulting in the conviction being quashed and a new trial ordered. Although the applicant had not appealed in respect of either conviction or sentence on the handling charges, the Court thought it necessary to turn its attention to the sentences on those counts. It was clear to their Honours that if the applicant had been sentenced on the four counts of handling in isolation from the sentence imposed in respect of the trafficking charge, he would have received a greater effective sentence than twelve months. The Court therefore substituted for the sentences imposed by the trial judge terms of eighteen months' imprisonment on each of the four counts, two of the terms to be cumulative, and the remaining two to be concurrent. This made a total effective sentence of three years, in relation to which the Court fixed a minimum sentence before parole of two years. (at p16)

4. The applicant now seeks special leave to appeal from that part of the decision of the Court of Criminal Appeal which increased the sentences on the handling charges, and fixed a minimum term in relation to those sentences. As is customary in dealing with applications for special leave in criminal matters, the Court encouraged counsel to present all the submissions they would wish to make on the hearing of the appeal if special leave were granted. (at p17)

5. The Court of Criminal Appeal found authority for the course it took in the provisions of s. 569(1) of the Crimes Act. That sub-section provides:

"If it appears to the Full Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted."

Although similar provisions appear in the criminal laws of other jurisdictions in Australia, there is no report of any judicial exposition of its meaning and application in any prior case in this country. However, the provision is modelled on s. 5(1) of the Criminal Appeal Act 1907 (U.K.); see now s. 4, Criminal Appeal Act 1968 (U.K.). The former provision was considered and applied by the Court of Criminal Appeal in England in Reg. v. Lovelock (1956) 1 WLR 1217; (1956) 3 a11 ER 223; 40 Cr App R 137 . In that case, the appellant was indicted on two counts. He pleaded guilty to the second count, and was convicted after trial of the first count. He was sentenced to six years' imprisonment on the first count, and two years concurrent on the second. He appealed only from the conviction on the first count, and his appeal succeeded. The conviction on the first count was quashed. The Court of Criminal Appeal then substituted a more severe sentence on the second count. Lord Goddard C.J., delivering the judgment of the Court, said of s. 5(1) of the Criminal Appeal Act (1956) 1 WLR, at p 1218; (1956) 3 A11 ER, at pp 223-224; 40 Cr App R, at pp 139-140 : "Probably the reason why that subsection was put in was this: You get an indictment containing three counts. On the first count there is a conviction and the court passes a sentence of, for example, five years. They should then go on and pass some sentences, which may be concurrent or consecutive, but are generally concurrent, upon the other counts on which there have also been convictions; and the court may very easily think: 'We have passed a sentence of five years on count 1, so it will be enough on counts 2 and 3 if we pass a sentence of three or five years to run concurrent on each of these counts.' Then the case comes before the Court of Criminal Appeal and the court might say: 'What has happened here obliges us to quash the conviction on count 1, which carries the sentence of five years, but we affirm the conviction on counts 2 and 3.' It may be that there is very little difference, if any, between the merits of counts 1, 2 and 3. The subsection will then give the Court of Criminal Appeal, upon quashing the conviction on count 1, power to pass an adequate sentence for the convictions on counts 2 and 3." (at p18)

6. The authority which s. 5(1) conferred on the Court of Criminal Appeal was invoked again in Reg. v. Craig (1967) 1 WLR 645; 51 Cr App R 8 . Craig was convicted on the third, fourth, fifth and sixth counts in an indictment, and sentenced to imprisonment for terms of five years, three years, nine months and nine months respectively. All sentences were concurrent. He appealed against conviction only on count three, and against the sentence imposed on each count. The Court of Criminal Appeal allowed the appeal against the conviction on the third count and quashed the sentence of five years. It then substituted a sentence of four years' imprisonment for that of three years on the fourth count. I pause to observe that the fact that Craig appealed against the sentence imposed on the fourth count may serve to distinguish the case from that of Lovelock; indeed, it may have been unnecessary for the Court to rely on the power conferred by s. 5(1). (at p18)

7. In Reg. v. Edirimanasingham (1961) AC 454 the Judicial Committee of the Privy Council had occasion to consider the meaning of s. 6(1) of the Court of Criminal Appeal Ordinance (Ceylon) No. 23 of 1938, a provision which is very similar to s. 5(1) of the English Act. In this case the respondent had been convicted of one count of murder, and two of attempted murder. He was sentenced to life imprisonment on the murder count, but no sentence was passed on the remaining counts. The murder conviction was quashed on appeal, but no challenge was made to the verdict of the jury on the counts of attempted murder. The Court of Criminal Appeal in Ceylon ruled that it had no power to impose any sentence on the remaining counts. The Crown appealed. Speaking for the Judicial Committee, Lord Tucker said (1961) AC, at p 462 :

"It" (the subsection) "is in terms dealing with a case where an appellant has not been properly convicted on some charge or part of an indictment. This applies to count 1 in the present case. The conviction and sentence thereon no longer stand, but the court is empowered to substitute for that which has disappeared such sentence as may be warranted in law by the verdict on the charge or part of the indictment on which the appellant has been properly convicted. This . . . can only mean that in place of the sentence that has been quashed the court can pass the sentence appropriate to the convictions on the remaining counts on which the appellant has been convicted but not sentenced. The section refers to 'the sentence passed on the appellant at the trial.' Where the court affirms such sentence the application of the subsection may be restricted to cases where there has been a general sentence, but where the sentence passed on the appellant at the trial - in this case rigorous imprisonment for life - has been quashed, the words of the subsection in their ordinary and natural meaning appear to . . . confer power on the Court of Criminal Appeal to substitute a proper sentence for that which has been quashed, which can only be done by passing sentence on the remaining good counts. . . . It is not necessary to express any opinion as to whether or not the subsection warrants the Court in increasing a sentence passed at the trial on some other count with regard to which there has been no appeal against sentence."

It will be noted that their Lordships reserved their opinion on the very question which arose in Lovelock, and which arises in the present case. (at p19)

8. Counsel for the applicant argues that s. 569(1) applies only where, notwithstanding that an accused person is convicted on more than one count in an indictment, a single sentence is passed. Such a sentence may take one or two forms. It may be imposed in respect of one count in the indictment, with no sentence being imposed on the remaining count or counts. Edirimanasingham is one illustration of such a case, and the English case of O'Grady (1941) 28 Cr App R 33 is another. The second form that a single sentence may take is that which is generally referred to as a general sentence, a sentence described by Lord Tucker in Edirimanasingham (1961) AC at p 460 as one intended by the judge to cover more than one count. His Lordship remarked that such a sentence was sometimes to be found in cases in England both before and since the establishment of the Court of Criminal Appeal in 1907. An illustration of such a sentence may be seen in Hervey and Goodwin (1939) 27 Cr App R 146 . It is unnecessary to consider whether such a sentence could lawfully be imposed in Victoria. (at p19)

9. It is said for the applicant that, except in the case of Lovelock (1956) 1 WLR 1217; (1956) 3 A11 ER 223; 40 Cr App R 137 , there is no report of an occasion when the power has been invoked to interfere with a sentence which is not itself the subject of appeal, and that it is contrary to principle and unjust that a person who appeals successfully against his conviction on one count in an indictment may be in jeopardy of having an increased sentence substituted for a sentence in respect of which he has not appealed. (at p20)

10. With the assistance of the decision in Lovelock, the Court of Criminal Appeal found in s. 569(1) a power to substitute a higher sentence for that imposed by the trial judge on a conviction, not the subject of appeal either as to conviction or sentence, so long as the original sentence formed part of a total effective sentence arrived at on considerations which include a conviction which has been quashed. (at p20)

11. With great respect to their Honours, I do not think that the sub-section does confer such a power. The key phrase in the sub-section is "the sentence passed on the appellant at the trial". It is this sentence which may be either affirmed or replaced by a substitute. It must be a sentence which has a direct relation to the conviction which has been quashed. If it relates exclusively to a conviction on a count in the indictment in respect of which there was no appeal, and is not itself the subject of appeal, there is no occasion to consider its adequacy with a view either to affirmation or substitution. It must be taken to be adequate, as the prisoner does not complain that it is too severe, and the Attorney-General does not complain that it is too severe enough. If the reasoning of the Court of Criminal Appeal touching the propriety in the present case of the sentences on the handling charges is correct, then perhaps the Attorney-General should have appealed. There could then have been no quarrel with the course taken by the Court. (at p20)

12. It may be said that the sentences imposed on the handling charges did relate to the sentence on the heroin charge, because they formed part of an integrated whole which in its totality represented an appropriate sentence for all those counts in the indictment of which the applicant was convicted. In my opinion, such a process of reasoning fails to reflect proper principles of sentencing. Certainly on the facts of this case, from which there appears little if any connexion between the heroin charge and the handling charges, there is no warrant for seeing any relation between the heroin sentence and the other sentences. But even if there were a close relationship between the counts in the indictment, I would expect that for the purpose of selecting an appropriate sentence each count in the indictment would stand separately; cf. Halsbury's Laws of England, 4th ed., vol. 11, par. 332; Castro v. The Queen (1881) 6 App Cas 229 . Then any relationship that does exist between the counts, and also the propriety of the total sentence, would find expression in the degree of concurrency, if any, which is made to attach to the individual sentences. (at p21)

13. The matter may be approached in another way, with the same result. It is only where the impact of a sentence is not confined to the conviction that is quashed that there is any occasion which calls for a power to affirm or make a substitution for that sentence. In a case, as in this case, where a separate sentence is imposed in respect of each count in an indictment on which there is a conviction, I do not think it is open to say that the sentence which is imposed directly on the conviction which is later quashed on appeal contains any element of survival because of some relationship to the remaining counts. In truth, there is no such relationship. Yet it is only that sentence which s.569(1) says can be affirmed or for which another sentence can be substituted. The sub-section does not authorize any interference with the sentences which have been separately imposed on counts not the subject of appeal. (at p21)

14. The position may not be quite so clear in the special kind of case where the ultimate or maximum sentence that the law allows is passed in respect of a conviction which is later quashed on appeal, and no sentence is passed in respect of other convictions, not the subject of appeal, on the same indictment. However, the cases of O'Grady (1941) 28 Cr App R 33 and Edirimanasingham (1961) AC 454 provide support for the view that in those circumstances the sub-section confers power on the appellate court to fix a sentence in respect of the remaining convictions. It is unnecessary for the purposes of this case to further explore this aspect of the matter. (at p21)

15. It follows from the reasons I have outlined that, in my opinion, the Court of Criminal Appeal was mistaken in its view that s. 569(1) empowered it to increase the sentences relating to the handling charges. The sentences imposed by the trial judge should stand. The matter is one which warrants the grant of special leave. In the result, the applicant will remain liable to serve an effective term of imprisonment of twelve months with no minimum period to be served before becoming eligible for parole. There may be a question as to the source of the power of an appellate court in an appropriate case to adjust a minimum term in the event that one or more but not all of the convictions supporting it are quashed, and s.569(1) may be relevant in that regard. However, the question was not argued in this case, and it is unnecessary to deal with it. (at p22)

16. I would grant special leave, allow the appeal and vary the decision of the Court of Criminal Appeal by setting aside that part of it which substituted sentences on the handling charges and fixed a minimum term. (at p22)

BRENNAN J. When the applicant in this case was tried and sentenced, rule 2 in the Sixth Sch. to the Crimes Act 1958 (Vict.) provided:
"Charges for any offences whether felonies or misdemeanours may be joined in the same presentment if those charges are founded on the same facts or form or are a part of a series of offences of the same or a similar character."
The rule annuls the prohibition on joinder of a count of felony with a count of misdemeanour (see Clayton-Wright (1948) 33 Cr App R 22 ) and it confines the joinder of counts to cases where the charges in the presentment are connected in one or other of the ways mentioned in the rule. The right of the Crown to join in the one indictment two or more felony charges or two or more misdemeanour charges which are not connected (Castro v. The Queen (1881) LR 6 App Cas 229, at pp 244-245 ) is thus modified. The effect of the rule in confining the joinder of counts is important to the orderly administration of criminal justice both at trial and on appeal. The amendment of the rule by the Crimes (Classification of Offences) Act 1981 does not diminish its importance. (at p22)

2. When an accused person is convicted on two or more counts regularly joined, the trial judge is entitled to assess an appropriate overall sentence having regard to the entire course of criminal conduct which constitutes the several elements of the offences of which the accused is convicted. If the offences are founded on the same facts, it is necessary to ensure that the appropriate penalty for the same act or omission is not imposed twice; if the offences are part of a series, the entirety of the criminal conduct of the same or similar character, rather than the several acts or omissions constituting the separate offences, may determine the appropriate overall sentence to be imposed. In pronouncing sentence, however, the trial judge imposes separate sentences in respect of the several offences of which the accused has been convicted, effecting the appropriate overall sentence by adjusting the severity of the separate sentences and, when custodial sentences are imposed, by ordering that they be served either concurrently or cumulatively. (at p23)

3. On appeal against conviction, if the conviction upon one or more counts is quashed but the conviction upon another count or other counts stands, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the other convictions stand. The overall sentence may thus be altered, and the alteration may prove to be anomalous. Section 569(1) of the Crimes Act allows the correction of such an anomaly. It empowers the Full Court to alter the sentence when a conviction on one count in an indictment is quashed and a conviction on another count stands. It provides:
"If it appears to the Full Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted." (at p23)

4. A similar provision was considered by the Judicial Committee in Reg. v. Edirimanasingham (1961) AC 454, at p 462 , where Lord Tucker spoke of the consequence upon sentence of allowing an appeal against conviction:

"The conviction and sentence thereon no longer stand, but the court is empowered to substitute for that which has disappeared such sentence as may be warranted in law by the verdict on the charge or part of the indictment on which the appellant has been properly convicted."

However, their Lordships left open the question whether the power could be exercised where there is no appeal against sentence. That is the present case. Of course, if a convicted person appeals against his sentence, or if the Attorney-General does so, there is no doubt as to the power of the Full Court to increase the sentence (ss. 568(4), 567A(4)). But here there was no appeal against sentence. The Full Court, not having its attention drawn to Edirimanasingham but citing the judgment of Lord Goddard C.J. in Reg. v. Lovelock (1956) 1 WLR 1217; (1956) 3 A11 ER 223; 40 Cr App R 137 , found in s. 569(1) the power to increase the sentences imposed by the trial judge in respect of four offences of handling stolen goods when it quashed a conviction for trafficking in heroin. It was objected that s.569(1) did not authorize the Full Court to interfere with the sentences passed in respect of convictions upon the counts of handling stolen goods. The applicant had appealed against the trafficking conviction alone; he did not appeal against either his conviction or his sentence upon any of the counts of handling stolen goods. (at p24)

5. The count of trafficking had been joined irregularly in the same presentment with the four counts of handling stolen goods. Neither nexus required by rule 2 in the Sixth Sch. was available to support the joinder. The counts were neither founded on the same facts nor formed a series of offences of the same or a similar character. The first question is whether s.569(1) is intended to operate where the count on which the appellant was properly convicted has not been regularly joined with the count on which he has not been properly convicted. Where there has been a regular joinder, the gravest conduct may be common to two or more of the convictions upon the joined counts. Then, if the trial judge has imposed a penalty appropriate to the gravity of that conduct in respect of one conviction only - as frequently happens - and only that conviction were quashed, it would be anomalous to allow the gravest conduct to escape condign punishment. Or again, if there be a series of offences of the same character and the trial judge imposes an appropriate penalty in respect of one conviction which reflects the seriousness of the course of conduct of which that offence is a part, he may not be concerned to impose as severe a penalty in respect of other convictions which have been regularly joined. That also frequently happens, and it would be anomalous to allow the quashing of the conviction in respect of which the heavier penalty was imposed to result in leaving the course of criminal conduct without condign punishment. In these classes of cases it is appropriate to exercise the powers conferred by s.569(1). They are cases where the counts in the indictment have been regularly joined, so that there is a connection of a kind referred to in rule 2 between the conduct charged in the several counts in the presentment. (at p24)

6. It is extremely unlikely that it would be right to exercise the power conferred by s.569(1) to adjust in the Full Court the sentence imposed at first instance on counts which ought to have been tried separately from the count upon which the appellant is found to have been not properly convicted. In my view, the present case was not a proper case for the exercise of the power. It was not a case where the sentence imposed on the conviction which was quashed was passed in respect of conduct connected with the conduct supporting the convictions which stand. It was not appropriate in the present case to exercise the powers conferred by s.569(1), for the Court increased the sentences upon convictions which were unconnected with the case before it and which could not have fallen for consideration had the presentment been regularly framed. (at p25)

7. However, I would not uphold the wider grounds upon which this appeal was argued in a case where the counts in an indictment are regularly joined. It was submitted that "the sentence passed on the appellant" might refer only to a global sentence passed in respect of two or more convictions upon the same indictment, and not to a separate sentence passed in respect of a conviction against which the appellant has not appealed. A global sentence is not usually passed in Victoria; indeed, it may be illegal. Section 569(1) cannot be confined to the case, if there be a case, where a global sentence is lawfully imposed. (at p25)

8. It was submitted further that it would be unjust for the Full Court of its own motion to increase a sentence in respect of a conviction against which neither the appellant nor the Crown has appealed. The sentence affirmed or substituted by the Full Court must plainly be a sentence which, after an appeal against conviction on one or more counts is allowed, is supported by the conviction or convictions which stand; it cannot be the sentence in respect of the conviction or convictions which are quashed. Given a regular joinder of the counts, there is no injustice in increasing the sentence in respect of a conviction which stands if the increase is occasioned by the setting aside of the sentence which carried the appropriate penalty for conduct which constitutes either an element of the offence or a part of the series of offences for which the appellant stands convicted. Full justice is done to an appellant when the Full Court quashes a conviction on some count or part of the indictment on which he ought not to have been convicted; it goes beyond the requirements of justice to relieve him of the appropriate penalty for conduct for which he still stands convicted. The power to affirm the sentence or to substitute another sentence under s.569(1) is not needed when there are appeals against that sentence under s.567A or s.568. Section 569(1) must have an operation additional to that for which those sections provide. (at p25)

9. It was further submitted that it could not "appear to the Full Court that an appellant . . . has been properly convicted" on some count in the indictment unless the propriety of the conviction had been canvassed in argument before the Full Court. Though the Full Court, in determining whether an order should be made under s.569(1), is at liberty to inquire into the merits of the convictions on those counts in respect of which there is no appeal, the Full Court is entitled to accept an unchallenged conviction as sufficient ground for satisfaction that an appellant "has been properly convicted on some other count" in the indictment before the Court. In proceedings upon that indictment, a conviction is conclusive of the issues joined between the Crown and the accused except for the purposes of appeal against that conviction. Moreover, where a quashed conviction is founded upon the same facts as a conviction which stands or where it was a conviction for one of a series of offences of the same or a similar character, the Full Court would frequently acquire some knowledge of the merits of the convictions which stand. (at p26)

10. In this case, however, I would grant special leave to appeal, allow the appeal and set aside so much of the order of the Full Court as increased the sentences on counts 3, 4, 5 and 6, and fixed a minimum non-parole period. I would thereby restore the sentences on those counts imposed by the trial judge, which must be served according to their tenor. (at p26)

Orders

Application for special leave to appeal granted.

Appeal allowed.

Order of the Court of Criminal Appeal of the State of Victoria be varied by setting aside so much of that order as increased the sentences on counts 3, 4, 5 and 6 and as fixed the minimum period to be served by the applicant before becoming eligible for parole. Restore the sentences imposed by the trial judge on those counts and order that no minimum term be fixed.