Strong v The Queen - [2005] HCA 30

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, KIRBY, CALLINAN AND HEYDON JJ
ROBERT JOHN STRONG APPELLANT
AND
THE QUEEN RESPONDENT
Strong v The Queen [2005] HCA 30
15 June 2005
S152/2004
ORDER
Appeal dismissed.

On appeal from the Supreme Court of New South Wales
Representation:
B W Walker SC with G A Bashir for the appellant (instructed by Legal Aid Commission of New South Wales)
G E Smith SC with D M L Woodburne for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Strong v The Queen
Criminal law – Sentencing – Habitual criminal – Re-determination of sentence – Appellant sentenced for primary offences of stalking and intimidation – Appellant pronounced habitual criminal and sentenced to further concurrent term of imprisonment under the Habitual Criminals Act 1957 (NSW) ("the Act") – Sentences overturned by Court of Criminal Appeal (NSW) – Appellant re‑sentenced for primary offences and as an habitual criminal – Whether whole sentence must be re-determined where one component of that sentence has miscarried – Whether appellate court required to determine for itself whether to pronounce appellant habitual criminal – Whether in doing so appellate court is exercising its own jurisdiction and powers – Whether appellate court made such determination – Whether appellate court correctly upheld sentencing judge's pronouncement of the appellant as habitual criminal – Whether appellate court's approach conformed to scrupulously thorough procedures for additional orders of preventative detention under the Act.
Words and phrases – "habitual criminal".
Habitual Criminals Act 1957 (NSW), ss 4 and 6.

GLEESON CJ. The appellant, who has a long criminal history, pleaded guilty to a number of offences, including stalking and intimidating a young woman. The primary judge, Freeman DCJ, imposed sentences involving a total of 8 years' imprisonment, with a non-parole period of 6 years. Later, acting under the Habitual Criminals Act 1957 (NSW) ("the Act"), he pronounced the appellant to be an habitual criminal and imposed a sentence of 14 years' imprisonment under the Act. This was to commence on the same day as the first of the other sentences.
The Court of Criminal Appeal[1] allowed appeals both against the sentences for the substantive offences and the sentence imposed under the Act. It re-sentenced the appellant, reducing the sentences substantially. In a further appeal to this Court, the appellant contends that the Court of Criminal Appeal erred in law in one respect in the way in which it dealt with the appeal concerning the application of the Act. The point of law which constitutes the basis of the ground of appeal to this Court was not argued in the Court of Criminal Appeal. The members of the Court of Criminal Appeal addressed the grounds of appeal before that Court, and responded in their reasons for judgment to the arguments advanced on behalf of the appellant. There was a division in the Court of Criminal Appeal, but it did not turn upon the point that has been argued in this Court. Unsurprisingly, the reasoning of the members of the Court of Criminal Appeal does not specifically address that point.
[1]R v Strong (2003) 141 A Crim R 56 (Sully and Dunford JJ, Buddin J dissenting).
In the Court of Criminal Appeal, counsel for the appellant, in support of both the application for leave to appeal against the sentences imposed for the substantive offences and the application for leave to appeal against the decision of Freeman DCJ under the Act, relied upon fresh evidence. That evidence took the form of psychiatric reports prepared following the proceedings before Freeman DCJ and, in one case, prepared between the first and second days of the hearing in the Court of Criminal Appeal. Sully J, with whom Dunford J agreed, found error in the reasoning of the primary judge in sentencing for the substantive offences. The nature of that error is not presently relevant. Accordingly, and appropriately, he saw it as the Court of Criminal Appeal's function to re-sentence the appellant for the substantive offences, and, in doing so, took into account, and made detailed reference to, the fresh evidence. He concluded that leave to appeal against the sentences should be granted, that the sentences imposed by Freeman DCJ should be quashed, and that different sentences involving lesser terms should be imposed. Sully J then turned to consider the matter of present relevance, that is to say, the decision made by Freeman DCJ under the Act. There were two elements of that decision: the pronouncement that the appellant was an habitual criminal; and the fixing of a sentence of imprisonment under the Act.
There were nine grounds of appeal in relation to the decision under the Act. Grounds 1, 2, 3, 4, 5 and 7 have no bearing on the present appeal. Ground 6 was that Freeman DCJ "erred in the exercise of his discretion to make a pronouncement, and in passing sentence under [the Act], by failing to take into account the [appellant's] subjective circumstances." That ground was dismissed primarily for the reason that Freeman DCJ did not fail to take into account the appellant's subjective circumstances.
Grounds 8 and 9 were as follows:
"8.The sentence passed under [the Act] was excessive in all the circumstances.
9.On the basis of the fresh evidence as to mental disorder, the pronouncement of the [appellant] as an habitual criminal and the consequent sentence were not warranted in law."
Sully J concluded that there had been "an ultimate miscarriage" in the decision of Freeman DCJ under the Act and "that [the Court of Criminal Appeal] must do what it properly can do by way of correction." He then proposed that the appellant should be re-sentenced under the Act, and that there should be a substantial reduction of the sentence that had been imposed by Freeman DCJ, from 14 years to 8 years.
What Sully J said about the two elements of the primary judge's decision is set out in the reasons of Callinan and Heydon JJ. The whole of what he said in that respect must be understood, both in the light of the grounds of appeal and the arguments he was addressing, and in the light of his conclusion that the sentencing discretion of the primary judge under the Act had miscarried. His references to the weight to be given to a sentencing judge's exercise of discretion reflected the way the appellant's case was presented in the Court of Criminal Appeal. In the end, however, Sully J held that there had been discretionary error in sentencing, and that the Court of Criminal Appeal was obliged to intervene.
The appellant now complains that Sully J was wrong to deal with the matter upon the basis that the Court of Criminal Appeal was constrained by the principles stated in House v The King[2]. The appellant submits to this Court that, having quashed the sentences imposed by Freeman DCJ on the substantive offences, the Court of Criminal Appeal was obliged to consider afresh both aspects of the decision under the Act, that is to say, the pronouncement and the sentence.
[2](1936) 55 CLR 499.
It is apparent that, just as he had taken the fresh evidence into account in sentencing for the substantive offences, Sully J also took it into account in sentencing under the Act. He said:
"The effect of what I would favour by way of re-sentencing on the substantive matters means that the [appellant] will serve 5 years in custody; and, if not granted parole, 7 years in custody. He cannot be released, therefore, before October 2005; and possibly October 2007. A concurrent sentence, passed pursuant to the Habitual Criminals Act, of 8 years, would extend until October 2008, the period of the appellant's detention. A sentence of that order, with such consequences, is in my opinion justly proportioned to the circumstances of the [appellant's] case. The [appellant's] condition is, by any reasonable reckoning, a difficult and troubling one. It requires careful and sensitive on-going monitoring and treatment. The [appellant], however he might be released back into the general community, will need some very careful ongoing supervision. The effect of the sentence passed pursuant to the Habitual Criminals Act will give the relevant authorities some added flexibility in assessing whether, and when, and upon what basis, the [appellant] is to be returned into the general community. It might very well be that, in due course, it will be obvious that the only fair way of dealing with the [appellant] is by taking steps, if it is possible to do so, to have him dealt with as some kind of forensic patient pursuant to the relevant mental health legislation. No doubt matters of that character cannot be rushed; but, if there is to be purely preventive detention at all of the [appellant], then it must be a matter of course that the period of such purely preventive detention is to be the minimum which the evidence suggests will be sufficient to enable the Corrective Services authorities, and the Prison Medical authorities to deal in a properly humane fashion with this [appellant]."
From a reading of the whole of his reasons, it is obvious that the references in that passage to the evidence included references to the fresh evidence. It will also be observed that, on the basis of that evidence, Sully J regarded the sentence he proposed under the Act as the minimum period required for the protection of the public.
I accept that, having concluded that the sentencing by Freeman DCJ for the substantive offences was affected by error, and that the Court of Criminal Appeal should intervene to re-sentence for those offences, the Court of Criminal Appeal was entitled and obliged to re-consider both elements of the decision under the Act[3]. The proceedings, however, were conducted in the ordinary manner of adversarial litigation, and the reasons of Sully J reflected, and responded to, the grounds of appeal and the arguments put before him. His references to House v The King are to be understood in that context. Furthermore, although the appeal was presented and argued on the basis that the principles in House v The King were relevant, Sully J considered that, even allowing for the appellate restraint dictated by those principles, this was a case where intervention was appropriate. His acknowledgment of the experience of the primary judge was made in the course of giving reasons for a decision substantially to alter the sentence imposed.
[3]cf McGarry v The Queen (2001) 207 CLR 121.
I am not able to accept as a serious possibility that the assumed constraints of House v The King resulted in an inappropriate reluctance on the part of Sully J to consider for himself the first element of the decision under the Act. There are two reasons for this. First, the justification for using the Act to deal with the difficult and dangerous situation created by the appellant's threats to his victim, and to a number of other women, was clearly considered and is reflected in the passage quoted above. The idea that Sully J might have isolated the question of the length of the sentence from the question of the propriety of the pronouncement (that is, of invoking the provisions of the Act for the protection of the public) is far-fetched. Secondly, Sully J said that he agreed with Freeman DCJ's decision to pronounce the appellant to be an habitual criminal. He said that Freeman DCJ's decision that the statutory pre-conditions had been established, and that there was "every good reason from the viewpoint of the protection of the public, to pronounce and sentence accordingly", was in his opinion correct. The nature and extent of the need for protection of the public by applying the Act in this case was built into the new sentence that was imposed, and the reasons given for that sentence.
In my view, it is sufficiently clear, from his endorsement of the primary judge's decision to apply the Act, from the reasons he gave for his conclusions as to the appropriate outcome under the Act, and from his references to ground 9 and the fresh evidence, that Sully J's refusal to set aside the pronouncement of the appellant as an habitual criminal was not merely the result of appellate restraint in interfering with a discretionary judgment, but was the result of a personal judgment, formed after hearing and taking into account evidence that was not before the primary judge, that the protection of the public required such a pronouncement. By reason of the way in which the case was presented and argued, Sully J in parts of his reasons employed the language of House v The King. In other parts of his reasons, he employed the language of independent appraisal of the situation in the light of new information. He did not refer to the point now in issue, because it was never argued. Furthermore, as he approached the decision under the Act, it was not material to the outcome. It would have made no difference to his final conclusion.
The appeal should be dismissed.
McHUGH J. The issue in this appeal is whether the Court of Criminal Appeal of New South Wales erred by failing to re-determine whether the appellant should be pronounced an habitual criminal under the Habitual Criminals Act 1957 (NSW). The appellant contends that the judgment of that Court shows that it disallowed his appeal against the pronouncement by treating that appeal as an appeal against a discretionary judgment. He submits that, after the Court of Criminal Appeal set aside the sentences that led to him being pronounced an habitual criminal, it should have itself determined whether such a pronouncement was required.
In my opinion, the argument of the appellant is correct. The appeal must be allowed and the matter remitted to the Court of Criminal Appeal to determine whether that Court should pronounce the appellant an habitual criminal and, if it does, what additional sentence should be imposed on him.
Statement of the case
The District Court of New South Wales sentenced the appellant to four years imprisonment for the offence of intimidation and five years for the offence of stalking. He was given a total non‑parole period of six years. At a further hearing, the District Court pronounced the appellant an habitual criminal holding that he was "now and will continue to be a threat to the community, certainly for the foreseeable future". As a result of making the pronouncement, the District Court sentenced the appellant as an habitual criminal to 14 years imprisonment, a term that was to be served concurrently with the sentences for the intimidation and stalking offences.
Subsequently, the Court of Criminal Appeal allowed an appeal against the sentences for intimidation and stalking. A majority of the Court re-sentenced the appellant to three years imprisonment for the intimidation offence and four and a half years imprisonment for the stalking offence with a non-parole period of five years. The Court also gave the appellant leave to appeal against the pronouncement that he was an habitual criminal but dismissed his appeal against that pronouncement. The Court (by majority) also granted leave to appeal against the sentence as an habitual criminal and re-sentenced the appellant to a term of eight years imprisonment in respect of the pronouncement.
Subsequently, this Court granted special leave to appeal from the order of the Court of Criminal Appeal on the following ground:
"The majority of the Court of Criminal Appeal (the Court) erred in approaching the appeal against the pronouncement and sentence under the Habitual Criminals Act1957 (the Act), upon the basis that the Court, applying the principles identified in House v The King (1936) 55 CLR 499, was constrained by the decision of the primary judge, whereas the Court, having upheld the appeal against sentence, was obliged to address itself, afresh, to the questions arising for determination under s 4 of the Act."
The Court of Criminal Appeal erred by failing to determine for itself whether the appellant should be pronounced an habitual criminal
In determining the appeal against the pronouncement, Sully J, giving the judgment of the majority in the Court of Criminal Appeal, said[4]:
"As to those grounds, the correct starting point is the proposition that his Honour, in pronouncing and sentencing pursuant to the Habitual Criminals Act, was exercising discretionary powers. The contrary was not contended at the hearing before this Court.
That being so, it is trite that this Court will not interfere with the primary Judge's exercise of those discretions unless it is plain that they have miscarried; the relevant guiding principles being set out by the High Court of Australia in House v The King[5].
I do not believe that there is any ambiguity in the learned primary Judge's reasoning. His Honour was convinced, plainly, that the applicant presented as a very dangerous man, whose antecedents suggested that he was a recidivist with, at best, very slender prospects of future rehabilitation; and, as such, a present and likely future threat to women. His Honour deduced, correctly as I respectfully think, that the Act having been invoked, the statutory pre-conditions had been established; and there was, thereupon, every good reason from the viewpoint of the protection of the public, to pronounce and sentence accordingly.
I am wholly unpersuaded that his Honour's discretion to pronounce, miscarried. The more difficult question is whether the sentence which his Honour thereupon imposed was, to borrow from House '... upon the facts ... unreasonable or plainly unjust' so as to justify appellate intervention '... on the ground that a substantial wrong has in fact occurred'." (emphasis added)
[4]R v Strong (2003) 141 A Crim R 56 at 81 [96]-[99].
[5](1936) 55 CLR 499 at 504, 505 per Dixon, Evatt and McTiernan JJ.
This passage shows to the point of certainty that the majority judges in the Court of Criminal Appeal decided the appeal against the pronouncement as an habitual criminal on the basis that it was an appeal against a discretionary judgment. The judgment of the District Court on the pronouncement issue was, of course, a discretionary judgment. But with great respect, what the learned judges of the Court of Criminal Appeal overlooked was that, upon setting aside the sentences for the substantive offences of intimidation and stalking, the pronouncement and sentence under the Habitual Criminals Act had to be set aside.
Section 4(1) of the Habitual Criminals Act provides:
"When any person ... is convicted on indictment and has on at least two occasions previously served separate terms of imprisonment as a consequence of convictions of indictable offences ... then if the judge before whom such person is so convicted is satisfied that it is expedient with a view to such person's reformation or the prevention of crime that such person should be detained in prison for a substantial time, the judge may, in addition to passing sentence upon such person for the offence of which the person is so convicted, pronounce the person to be an habitual criminal and shall thereupon pass a further sentence upon the person in accordance with the provisions of section 6."
Section 6 of that Act provides:
"(1)The judge who, pursuant to the provisions of section 4, has pronounced a person to be an habitual criminal, shall pass a sentence of imprisonment upon such person for a term of not less than five years nor more than fourteen years.
(2)Any sentence of imprisonment being served by any such person at the time the person is pronounced to be an habitual criminal shall be served concurrently with the sentence imposed pursuant to the provisions of subsection (1)."
The terms of s 4(1) of the Act make it impossible to divorce the pronouncement of a person as an habitual criminal from the sentence for the offence which leads to the pronouncement. First, the pronouncement is conditional upon and "in addition to passing sentence upon such person for the offence of which the person is so convicted" ("the primary offence"). Second, if the conviction on the primary offence is set aside, the condition upon which the pronouncement operates no longer exists. It is not a tenable view of the section that the pronouncement can stand although the conviction for the primary offence is set aside. Third, the need for a pronouncement and consequential mandatory sentence cannot be separated from the length and type of sentence imposed for the primary offence. Any sentence including the primary sentence that is "being served by any such person at the time the person is pronounced to be an habitual criminal shall be served concurrently with the sentence imposed pursuant to the provisions of subsection (1)."[6]
[6]Habitual Criminals Act 1957 (NSW), s 6(2).

There is much to be said for the view that, when the sentence for the primary offence is set aside, the pronouncement is automatically set aside. But, independently of that consideration, the primary sentence and the pronouncement are so closely connected that, as a matter of principle, an appellate court that sets aside the primary sentence must also set aside the pronouncement and the mandatory sentence that follows it. There can be few, if any, cases where an appellate court, having concluded that an integer of a sentence has miscarried, can refuse to determine afresh the other integers of the sentence. That was the view of this Court in McGarry v The Queen[7] where the Court had to consider a primary sentence and an indefinite sentence in legislation where separate provisions governed appeals in respect of each sentence. The Sentencing Act 1995 (WA) empowered a "sentencing judge, if the relevant conditions are met, to 'order the offender to be imprisoned indefinitely' and to do so 'in addition to imposing the term of imprisonment for the offence'."[8] In that context, this Court said that "[a]n order for indefinite imprisonment is, then, a part of the sentence which is imposed (just as much as, in other cases, will be a parole eligibility order, or an order suspending the imprisonment)."[9] Consequently, the Court held that, if the sentencing discretion in respect of the primary sentence miscarried, the term of indefinite imprisonment also miscarried. In a joint judgment, five members of the Court[10] said:
"The Criminal Code (WA) makes separate provision for appeals to the Court of Criminal Appeal against an order for indefinite imprisonment (s 688(1a)(a)) and against any other sentence (s 688(1a)(b)). The former lies as of right; the latter lies only with the leave of the Court of Criminal Appeal. That might be thought to suggest that two appellate processes had been engaged in the present case – one concerning the order for indefinite imprisonment and the other concerning the nominal sentence. Even if that were so, it should not obscure the fact that the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence, form part of a single sentencing decision.
It follows that if an appellate court concludes that the sentencing judge's discretion miscarried in fixing the nominal term of imprisonment, the whole of the sentence imposed by the sentencing judge, including the order for indefinite imprisonment, should be set aside and the appellate court would then be obliged itself to re‑sentence the offender."
[7](2001) 207 CLR 121.
[8](2001) 207 CLR 121 at 126 [7] (emphasis in original).
[9](2001) 207 CLR 121 at 126 [7].
[10]Gleeson CJ, Gaudron, Gummow and Hayne JJ and myself: (2001) 207 CLR 121 at 126 [8]-[9].
We went on to say[11]:
"The question would not be, as the Court of Criminal Appeal appears in this case to have thought it to be, whether it had been open to the sentencing judge to make the order for indefinite imprisonment which had been made. The sentencing discretion being shown to have miscarried, there was no occasion or need to consider whether it could be separately demonstrated that the sentencing judge's discretion to make an order for indefinite imprisonment had miscarried. It was for the Court of Criminal Appeal to pass such other sentence as ought to have been passed."
[11](2001) 207 CLR 121 at 126 [9] (emphasis in original).
It follows from the principle for which McGarry is an authority that the pronouncement that the appellant was an habitual criminal was part of the sentencing decision for which he was imprisoned. Consequently, when the Court of Criminal Appeal set aside the sentences for intimidation and stalking, it was required to set aside the pronouncement and determine afresh whether a pronouncement should be made. Setting aside and re-considering the pronouncement was no different in principle from the action of the Court of Criminal Appeal in setting aside the non-parole periods imposed by the District Court and imposing new non-parole periods for the primary offences.
Counsel for the Crown contended that for three reasons the approach of this Court in McGarry was inapplicable to appeals under the Habitual Criminals Act 1957. First, under s 3(a) of the Habitual Criminals Act 1905 (NSW), a declaration that a person was an habitual criminal was "part of the sentence" imposed on that person. In contrast, under the Habitual Criminals Act 1957, the pronouncement and sentence is no longer declared to be part of the one sentence. Under the 1957 Act, the sentence imposed in respect of the pronouncement is "a further sentence" that is imposed "in addition to" the sentence for the primary offence[12]. Second, s 4(2) of the Habitual Criminals Act 1957 provides that, in certain circumstances, a judge may declare a person an habitual criminal after the person has been convicted by a Magistrate. Counsel for the Crown contended that this meant that the substantive offence and the pronouncement are imposed separately and not as part of a single sentence or decision. He also pointed to different rights of appeal in relation to the substantive sentence imposed by the Magistrate and the pronouncement and further sentence of the judge. Third, as in R v Roberts[13], an offender may appeal only against the pronouncement or consequential sentence and not the sentence for the primary offence. In such cases, only the pronouncement or the mandatory sentence imposed in respect of the pronouncement is before the Court of Criminal Appeal.
[12]Habitual Criminals Act 1957 (NSW), s 4(1).
[13][1961] SR (NSW) 681.
None of these considerations, in my opinion, makes inapplicable the principle for which McGarry is an authority. First, the omission of the 1957 Act to declare that the sentence following the pronouncement is "part of the sentence" is not decisive. It is the sentencing decision – not the individual sentences – that attracts the McGarry principle. That principle does not cease to be applicable because there are separate sentences. In McGarry itself, the indefinite sentence was "in addition to imposing the term of imprisonment for the offence"[14]. Second, for the same reason, the provisions of s 4(2) dealing with pronouncements following convictions before a Magistrate do not affect the applicability of the McGarry principle. If the conviction before the Magistrate were set aside in separate proceedings, it could not be contended that the pronouncement of and the sentence for being an habitual criminal must stand. Third, the fact that an appeal may be brought only against the pronouncement or the consequential sentence is a matter of no present relevance. It says nothing as to whether the Court must set aside the pronouncement when the primary sentence is set aside.
[14]Sentencing Act 1995 (WA), s 98(1).
Accordingly, the Court of Criminal Appeal erred when it declared that it was "wholly unpersuaded that [the District Court's] discretion to pronounce, miscarried."[15] With great respect to those who hold the contrary opinion, the error of the Court of Criminal Appeal cannot be dismissed because – if it was the case – the argument put by the appellant in this Court was not put to the Court of Criminal Appeal. The error of the Court of Criminal Appeal constituted a miscarriage of justice in the technical sense of that term. It denied the appellant the right to have his appeal decided according to law. As a result, the appellant has been denied the judgment of the Court of Criminal Appeal on a matter that affected his liberty and his reputation.
[15](2003) 141 A Crim R 56 at 81 [99].
Order
The appeal must be allowed. The order of the Court of Criminal Appeal must be set aside and the matter remitted to that Court to determine the appellant's appeal against the pronouncement that he is an habitual criminal.
KIRBY J. This is an appeal from a judgment entered, by majority[16], by the New South Wales Court of Criminal Appeal[17]. The issue, presented by the sole ground upon which special leave to appeal was granted, is whether that Court erred in the disposition of the appeal against the pronouncement and sentence of the sentencing judge, made under the Habitual Criminals Act 1957 (NSW) ("the Habitual Criminals Act"). Specifically, it is whether it did so having regard to the appellate court's functions under the Criminal Appeal Act 1912 (NSW) ("the Appeals Act").
[16]Sully J (Dunford J concurring); Buddin J dissenting in part.
[17]R v Strong (2003) 141 A Crim R 56.
The majority of the Court of Criminal Appeal treated the proceedings that challenged the primary judge's pronouncement under the Habitual Criminals Act as contesting the exercise of a discretionary power and hence as governed by the principles stated by this Court in House v The King[18]. Their Honours declared that they were unpersuaded that the primary judge's exercise of discretion to make the pronouncement under the Habitual Criminals Act had miscarried[19].
[18](1936) 55 CLR 499 at 504-505. See (2003) 141 A Crim R 56 at 81 [97]-[99].
[19](2003) 141 A Crim R 56 at 81 [99].
In this Court, the appellant contends that, in the circumstances, the Court of Criminal Appeal was obliged (but failed) to discharge its own functions of resentencing, including in respect of the proceedings under the Habitual Criminals Act. Upon this footing, the deference paid by the majority to the discretion of the sentencing judge was misplaced, justifying the intervention of this Court.
The appellant's arguments are correct. Consistency with an unbroken line of authority in this Court, obliging the "regular and scrupulously thorough" observance of procedures mandated by statutes authorising preventive punishment for repeat offenders[20], applies in these proceedings to require that the appeal be allowed. The application of the Habitual Criminals Act should be considered afresh on new materials that are now available.
[20]Thompson v The Queen (1999) 73 ALJR 1319 at 1322-1323 [18]; 165 ALR 219 at 224. See also Chester v The Queen (1988) 165 CLR 611; Lowndes v The Queen (1999) 195 CLR 665; and McGarry v The Queen (2001) 207 CLR 121.
The facts
Mr Robert Strong ("the appellant") is an Aboriginal man, now aged forty-six years. He was reared within Aboriginal communities near Armidale in northern New South Wales. He grew up "in depressed economic and social circumstances and lacked normal family life and consistent role models"[21]. He suffers from intellectual disabilities. He worked briefly in a sheltered workshop; but has spent most of his life unemployed or in prison. His condition was described by Sully J in the Court of Criminal Appeal as involving "a sad picture of … a person whose real psychiatric problems are superimposed upon a background of economic and social disadvantage, and upon a history of drug abuse"[22].
[21]Report of T H Trembath, Parole Officer (August 1979) in evidence before the sentencing judge.
[22](2003) 141 A Crim R 56 at 72 [68].
Prior to the events of 2000 resulting in the present proceedings, the appellant had been convicted of serious offences in 1977 and 1983, connected with sexual assaults upon women. For these, the appellant was sentenced to lengthy periods of imprisonment. He served the full sentence on each occasion, without release to parole[23]. Although he was released in April 1996, following the completion of the sentence for the 1983 offences[24], in January 1997 he was again sentenced to imprisonment for six months on a charge of indecent assault of a female. In January 1998, he was again arrested for an offence of stalking a female victim and sentenced to imprisonment[25]. It was whilst in prison for the lastmentioned offence that he began writing sexually suggestive letters to a woman with whom he had had no relationship and who, following his release, became the subject of unwanted further attention.
[23](2003) 141 A Crim R 56 at 89 [118].
[24](2003) 141 A Crim R 56 at 89 [118].
[25](2003) 141 A Crim R 56 at 59 [5].
The letters to the lastmentioned victim formed the basis of the substantive charge of intimidation[26] subsequently presented against the appellant. After his release from prison, the appellant began following and watching this victim. He moved to live opposite her home and shouted abusive and sexually suggestive statements of love for her, knowledge of which, when they came to her attention, caused the victim fear and anxiety. This conduct became the basis of the substantive charge of stalking[27].
[26]Contrary to the Crimes Act 1900 (NSW), s 562AB.
[27]Contrary to the Crimes Act 1900 (NSW), s 562AB.
In September 2000, an apprehended violence order was served on the appellant requiring him to appear at the Armidale Local Court[28]. The appellant did not appear. He left Armidale. He was quickly apprehended in Enmore, a suburb of Sydney. Upon his apprehension, he was found to be in possession of a 15 cm serrated blade knife. In addition to the charges of intimidation and stalking, the appellant faced allegations of offensive language[29] and being in custody of a knife in a public place[30].
[28](2003) 141 A Crim R 56 at 61 [8].
[29]Contrary to the Summary Offences Act 1988 (NSW), s 4(1)(b). It appears that the appellant was charged under this provision even though it did not exist at the time of the alleged offence: see reasons of Callinan and Heydon JJ at [106]-[108].
[30]Contrary to the Summary Offences Act 1988 (NSW), s 11C(1).
The appellant pleaded guilty to the substantive offences in the Local Court on 22 November 2000. He was committed for sentence in the District Court pursuant to s 51A of the Justices Act 1902 (NSW). When he came for sentence before the sentencing judge (Freeman DCJ) at Armidale he adhered to his pleas[31]. The sentencing judge convicted the appellant. In respect of the offence of intimidation, he sentenced him to four years imprisonment with a non-parole period of three years. In respect of the charge of stalking, he sentenced the appellant to five years imprisonment with a non-parole period of three years. The sentencing judge took into account the allegations of using offensive language and being in unlawful custody of a knife[32]. His Honour made the sentences partly cumulative and partly concurrent. This course resulted in sentences for the substantive offences of eight years imprisonment, with a non-parole period of six years.
[31](2003) 141 A Crim R 56 at 58 [4].
[32]In accordance with the Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33.
There the matter might have rested but for an application made to the sentencing judge in June 2001 in Sydney for an order pronouncing the appellant an habitual criminal pursuant to the Habitual Criminals Act and for the imposition of a further concurrent sentence under that Act[33]. That application was dealt with on a collection of documents which the prosecution provided to the sentencing judge in advance of the supplementary hearing. No further evidence was called for either party, whether oral or documentary[34]. The sentencing judge, for reasons that he then published, upheld the prosecution application. He pronounced the appellant to be an habitual criminal under the Habitual Criminals Act. He sentenced him to the maximum term of imprisonment provided by that Act, namely fourteen years, to date (as the other sentences had done) from the day on which the appellant had been taken into custody in Enmore, 4 October 2000.
[33](2003) 141 A Crim R 56 at 62 [18]-[19].
[34](2003) 141 A Crim R 56 at 62 [22].
The decision of the Court of Criminal Appeal
Unanimous finding of error: The appellant made an application for leave to appeal pursuant to the Appeals Act. The application contested what Sully J (who gave the reasons of the majority in the Court of Criminal Appeal) described as the "substantive offences"[35]. But it also challenged the pronouncement that the appellant was an habitual criminal under the Habitual Criminals Act; and the sentence imposed under the latter Act, pursuant to that pronouncement[36].
[35](2003) 141 A Crim R 56 at 63 [27] (heading).
[36](2003) 141 A Crim R 56 at 73-74 [72].
The Court of Criminal Appeal was unanimous that the appellant had established error under the third ground of appeal relating to the sentences for the substantive offences[37]. It held that the sentencing judge had erred in refusing to discount the sentence imposed for the stalking offence, given that the appellant had promptly pleaded guilty to that offence. At the least, it was held, the appellant was entitled to "a proper utilitarian discount" for that plea[38].
[37](2003) 141 A Crim R 56 at 68 [50] per Sully J (Dunford J agreeing at 83 [104]; Buddin J agreeing at 83 [107]).
[38](2003) 141 A Crim R 56 at 68 [51] per Sully J.
This conclusion required that the appellant be resentenced by the Court of Criminal Appeal. It thus became unnecessary (as Sully J pointed out[39]) to consider separately in the appeal an additional ground of objection to the substantive sentences. This was[40] that, on the basis of fresh evidence as to a mental disorder suffered by the appellant, the original sentences were not warranted in law or were manifestly excessive in the circumstances. The fresh evidence arose out of the tender before the Court of Criminal Appeal of substantial recent evidence of the opinions of psychiatrists concerning the appellant's mental condition.
[39](2003) 141 A Crim R 56 at 69 [61].
[40]Ground 6: (2003) 141 A Crim R 56 at 69 [60].
That evidence, which was described by Sully J[41], was potentially important in two respects. First, it updated the psychiatric and psychological evidence that had been placed before the sentencing judge in the form of reports prepared between 1979 and 1996. Although those reports had been supplemented by one of Mr Philip Nolan, psychologist, of February 2001, it was common ground that the latter report had not been placed before the sentencing judge at the time of the sentencing for the substantive offences[42].
[41](2003) 141 A Crim R 56 at 70-72 [63]-[68].
[42](2003) 141 A Crim R 56 at 90 [119] per Buddin J.
Mr Nolan's 2001 report was subsequently made available to the sentencing judge in connection with the application under the Habitual Criminals Act. However, as Buddin J observed, "[i]ts utility must have been limited by the fact that it was not prepared for that ... purpose"[43]. For example, in his report of 2001, Mr Nolan did not have the full details of the offences or access to all of the prior expert reports. Moreover, his report did not address the question presented by that Act. No report was ordered by the sentencing judge from the probation and parole service, despite the language of s 9 of the Habitual Criminals Act.
[43](2003) 141 A Crim R 56 at 90 [119].
Secondly, the new psychiatric reports were potentially important for the proceedings under the Habitual Criminals Act because, as Sully J was to point out, in reviewing and incorporating extracts from them, they revealed an important development in the thinking of Dr Stephen Allnutt, a specialist forensic psychiatrist. This was to the effect that the appellant could, by 2002, have been recognised as suffering "symptoms of psychosis" that met the recognised legal criteria for a "mental illness"[44]. A question was therefore presented as to whether the appearance of such an illness might call for treatment and/or management of the appellant's case in the future under mental health legislation, rather than further punishment within the criminal justice system, including under the Habitual Criminals Act. Ultimately, Sully J was to voice recognition of this problem[45]. However, having regard to his conclusions, it was recognition to be given effect only in the context of the penal regime for which the Habitual Criminals Act provides.
[44](2003) 141 A Crim R 56 at 71 [65].
[45](2003) 141 A Crim R 56 at 82 [101].

Having concluded that the sentencing for the substantive offences had miscarried, Sully J proceeded to what he saw as the first task of the appellate court. This was to grant leave to the appellant to appeal against both of the sentences imposed upon the appellant for his substantive offences; to quash those sentences; and to proceed to a resentence in respect of the two convictions[46].
[46](2003) 141 A Crim R 56 at 82-83 [103].
Dissenting proposal for remitter: In dissent as to this course, Buddin J concluded that the recognition that it had become necessary for the Court of Criminal Appeal to intervene, presented squarely the question of how it should do so in disposing of the appellant's case in that Court[47]. Under the Appeals Act, the options before that Court, so far as the disposition of the appeal against sentences for the substantive offences was concerned, included, for itself, to "pass such other sentence" (being one "more or less severe [as] warranted in law"[48]) or to remit the resentencing to the court of trial for determination[49].
[47](2003) 141 A Crim R 56 at 83 [107].
[48]Appeals Act, s 6(3).
[49]Appeals Act, s 12(2).
In the ultimate, having regard to what he saw as the connected issues of the application for leave to appeal against the pronouncement that the appellant was an habitual criminal[50] and the additional sentence of imprisonment imposed in consequence of that pronouncement[51], Buddin J decided that the correct order to be made was to grant leave to appeal; to allow the appeals against the substantive sentences, the pronouncement under the Habitual Criminals Act and the sentence passed in consequence of that pronouncement; to set those dispositions aside and to order the remitter of the entire resentencing of the appellant to the District Court[52].
[50]Habitual Criminals Act, s 4(1).
[51]Habitual Criminals Act, s 6(1).
[52](2003) 141 A Crim R 56 at 96-97 [147].
Buddin J's reasons for concluding that remitter for resentence was the appropriate course were (1) the initial failure to provide the sentencing judge with up-to-date psychiatric or psychological assessments of the appellant, relevant to the determination of the overall punishment of the appellant[53]; (2) the developing understanding of the appellant's psychiatric condition, reinforced by reports of attempted suicide in custody on the appellant's part[54] (a problem not uncommon amongst Aboriginal prisoners[55]); (3) the affidavit of the appellant's counsel who had appeared on the original sentencing proceedings in the District Court seeking to explain the reasons for failing to seek an adjournment of the application under the Habitual Criminals Act by reference to her concern about the effect of further delay and uncertainty on the appellant's suicidal state[56]; (4) the exceptional nature of orders to be made under the Habitual Criminals Act[57]; (5) the importance of the "fresh" or "new" evidence about the appellant's underlying mental health which had not been available to the sentencing judge; (6) the inevitable inter-relationship of the sentences for the substantive offences and any dispositions under the Habitual Criminals Act[58]; (7) the "draconian" consequences for the appellant of any order made under the Habitual Criminals Act[59]; (8) the novelty of the application made in the appellant's case under the Habitual Criminals Act (no prior such application having been made since the 1970s[60]); (9) the repeated insistence by this Court upon special care in the imposition of such additional sentences of preventive detention[61]; (10) the lack of a pre-sentence report concerning the appellant upon which the Court of Criminal Appeal could proceed to its own sentence[62]; (11) the passage of two years following the original pronouncement under the Habitual Criminals Act and the need to afford the prosecution a proper opportunity to test the fresh psychiatric evidence proffered for the appellant[63]; and (12) the advantage that remitter would afford to both parties by preserving to them any future entitlement that they might wish to appeal against orders made under the Habitual Criminals Act, in the light of the new and more satisfactory materials[64].
[53](2003) 141 A Crim R 56 at 90 [119]-[120].
[54](2003) 141 A Crim R 56 at 90 [121].
[55]Australia, Royal Commission into Aboriginal Deaths in Custody, (1991) (J H Wootten et al, Royal Commissioners).
[56](2003) 141 A Crim R 56 at 90 [122].
[57](2003) 141 A Crim R 56 at 91-92 [126]-[130].
[58](2003) 141 A Crim R 56 at 92-93 [131]-[133].
[59](2003) 141 A Crim R 56 at 94 [135].
[60](2003) 141 A Crim R 56 at 93-94 [134].
[61](2003) 141 A Crim R 56 at 94-95 [136].
[62](2003) 141 A Crim R 56 at 95 [139].
[63](2003) 141 A Crim R 56 at 95 [138].
[64](2003) 141 A Crim R 56 at 96 [142] referring to Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 at 664-665. See also Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 at 276-280.
Majority approach to resentencing:The majority (Sully J and Dunford J) were not convinced by the foregoing analysis. Because of the limited ground of appeal allowed in this Court, we are not, as such, deciding whether the circumstances that arose in the punishment of the appellant for his admitted offences warranted the approach adopted by the majority (including dismissal of the appeal against the pronouncement under the Habitual Criminals Act and resentencing to a shorter term under that Act) or by Buddin J (involving remitter of the entire task of resentencing, including under the Habitual Criminals Act, to the District Court). In deciding between those respective courses, the judges constituting the Court of Criminal Appeal were exercising powers of a discretionary character, vested in that Court by the Appeals Act. Unless the appellant could demonstrate error in the approach of the majority, this Court would not interfere in that disposition, even if it considered that the course favoured by Buddin J was the preferable one.
The suggested error, relied upon by the appellant, is said to have arisen in the passages in the reasons of Sully J in which his Honour stated that the sentencing judge "in pronouncing [that the appellant was an habitual criminal under the Habitual Criminals Act] and sentencing pursuant to [that Act] was exercising discretionary powers", the exercise of which an appellate court will not interfere with "unless it is plain that they have miscarried"[65].
[65](2003) 141 A Crim R 56 at 81 [96]-[97].
In that connection, Sully J referred to the well-known treatment of the review of discretionary decisions in House v The King[66]. His Honour then went on[67]:
"I do not believe that there is any ambiguity in the learned primary Judge's reasoning. His Honour was convinced, plainly, that the applicant presented as a very dangerous man, whose antecedents suggested that he was a recidivist with, at best, very slender prospects of future rehabilitation; and, as such, a present and likely future threat to women. His Honour deduced, correctly as I respectfully think, that the Act having been invoked, the statutory pre-conditions had been established; and there was, thereupon, every good reason from the viewpoint of the protection of the public, to pronounce and sentence accordingly.
I am wholly unpersuaded that his Honour's discretion to pronounce, miscarried."
[66](1936) 55 CLR 499 at 504-505.
[67](2003) 141 A Crim R 56 at 81 [98]-[99].
In his reasons, Sully J proceeded to consider, within the limits of House v The King, whether appellate intervention was justified in respect of the maximum sentence that had been imposed by the sentencing judge under the Habitual Criminals Act. He held that it was. He therefore concluded that the appellant should have leave to appeal against both the pronouncement and the sentence imposed under the Habitual Criminals Act. The appeal against the pronouncement was nonetheless dismissed. However, the sentence under the Habitual Criminals Act was substantially reduced. In effect, the resentence under that Act, favoured by the majority, enlarged the appellant's aggregate sentence of imprisonment by only one year, although, because not subject to reduction for parole[68], it removed the possibility of earlier release on parole previously allowed by the revised sentences for the substantive offences.
[68]Habitual Criminals Act, s 7 ("Governor may direct habitual criminal's release").
The emerging question:The question in this appeal is therefore whether, in the foregoing approach, the majority of the Court of Criminal Appeal erred (1) by failing for themselves to consider the questions arising for determination under s 4 of the Habitual Criminals Act and (2) by deferring inappropriately to the exercise by the primary judge of his powers under that Act, so far as that exercise resulted in the pronouncement that the appellant was an habitual criminal in accordance with that Act.
The law of habitual criminals
Early English and Australian laws: The common occurrence of repeat offending has produced many legislative attempts to deal with the problem. In 1871, the United Kingdom Parliament enacted the Prevention of Crimes Act affording, in England, a statutory regime for the additional punishment of habitual criminals. Legislation of a like kind was quickly enacted in Australia for the same purpose, namely to provide a power to judges to impose additional punishment in sentencing as a deterrence against repeat offending, to protect the public and to respond to the presumed existence of an identifiable "criminal class"[69].
[69](2003) 141 A Crim R 56 at 83-84 [108] per Buddin J citing New South Wales Law Reform Commission, Sentencing, Report No 79, (1996) at 233-234 [10.19].
In New South Wales this approach led to the enactment of the Habitual Criminals Act 1905 (NSW)[70]. That Act permitted a judge, in specified circumstances, to declare a person convicted of identified offences "an habitual criminal"[71]. Following such a declaration, the person so "declared" could be detained "at the expiration of his sentence" during the pleasure of the Executive[72]. The detention was under conditions of confinement requiring the person "to work at some trade or avocation", being "offered facilities for selling or otherwise disposing of the products of his labour"[73]. It was left to the Executive, having determined that the "habitual criminal is sufficiently reformed, or for other good cause", to release the prisoner on licence[74]. Male and female habitual criminals were to be kept apart[75] and alcoholic liquor prohibited in their places of confinement[76]. The essential object of the system was said to be two-fold: to protect the public and to afford the habitual criminal the opportunity for reform[77].
[70]Similar legislation was adopted in other Australian States: R v White (1968) 122 CLR 467 at 470 (a case concerning the Habitual Criminals Act 1870 (SA), re-enacted with amendments in Criminal Law Consolidation Act 1935 (SA), s 319(1)(b)). Like legislation was enacted in New Zealand: R v Steele (1910) 29 NZLR 1039; R v Ehrman (1911) 31 NZLR 136.
[71]s 3(a).
[72]s 5.
[73]s 6.
[74]s 7.
[75]s 10.
[76]s 11.
[77]R v Stanley [1920] 2 KB 235 at 240-241.
The 1957 NSW Act:This legislative scheme was eventually viewed as a failure both in England and in Australia. In 1948, the Criminal Justice Act in England repealed the previous legislation[78]. It substituted a regime that, in turn, became the model for the Act invoked in the appellant's case. That Act, the Habitual Criminals Act, adopted by the State Parliament of New South Wales in 1957, consciously followed the later English Act. It did so on the basis that the judiciary had resorted to the 1905 Act, mistakenly but bona fide, particularly in the case of juvenile offenders, as a means of ensuring that prisoners would receive training in a trade[79]. This, the Minister declared, had not been the intention of that Act. He quoted Dr Norval Norris's description of an habitual criminal as "one who possesses criminal qualities inherent or latent in his mental constitution (but who is not insane or mentally deficient); who has manifested a settled practice in crime; and who presents a danger to the society in which he lives (but is not merely a prostitute, vagrant, habitual drunkard or habitual petty delinquent)"[80].
[78]Prevention of Crime Act 1908 (UK).
[79]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 14 March 1957 at 4071.
[80]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 14 March 1957 at 4070.
It was for that reason that the Habitual Criminals Act was enacted in New South Wales to follow the reforms adopted by the English Act of 1948[81]. In accordance with the stated purpose, the Habitual Criminals Act treated the pronouncement of the person to be "an habitual criminal" as a separate judicial act. It was one to be made on the specified preconditions and not (as such) "part of the sentence of such person"[82]. The preconditions and the incidents of the pronouncement were tightened in 1957. It remained in the discretion of the judge, if "satisfied that it is expedient with a view to such person's reformation or the prevention of crime that such person should be detained in prison for a substantial time"[83]. The discretion so to order was intended to be a real one. As this Court explained in R v White[84], it was not a power to be exercised where, "notwithstanding a person has three convictions or more, he is not really an habitual criminal"[85].
[81]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 14 March 1957 at 4073. Provisions for preventive detention for repeat offenders exist in other States and Territories of Australia. These include Sentencing Act 1991 (Vic), ss 18A-18P; Penalties and Sentences Act 1992 (Q), s 163; Criminal Law (Sentencing) Act 1988 (SA), s 23; Sentencing Act 1995 (WA), s 98; Sentencing Act 1997 (Tas), s 19 and Sentencing Act (NT), s 65.
[82]Habitual Criminals Act 1905 (NSW), s 3(a).
[83]Habitual Criminals Act, s 4(1).
[84](1968) 122 CLR 467.
[85](1968) 122 CLR 467 at 472 per Barwick CJ, 478 per Menzies J (McTiernan, Kitto and Taylor JJ agreeing with Menzies J).
Disuse and proposed repeal: For various reasons, from the 1970s, the Habitual Criminals Act, and statutes like it in other jurisdictions, fell into disuse in Australia. In the Australian Criminal Reports series, which began in 1979, there is not a single case involving the application of the Habitual Criminals Act. In part, this may have reflected changing attitudes of prosecutors and in part the view of judges that the assumptions, procedures and consequences of such legislation had been overtaken by later sentencing developments. A similar change had occurred in respect of the somewhat analogous provisions of the Inebriates Act 1912 (NSW) and its equivalents. In proposals for the reform of the law of sentencing as late as 1996, the New South Wales Law Reform Commission recommended the repeal of the Habitual Criminals Act, a development noted by Buddin J[86].
[86](2003) 141 A Crim R 56 at 83 [108] citing New South Wales Law Reform Commission, Sentencing, Report No 79, (1996) at 233-234 [10.19].
The Law Reform Commission recorded that the Office of the Director of Public Prosecutions at that time was in favour of repeal of the Habitual Criminals Act and that already the Act had "fallen into disuse"[87]. Nevertheless, the Act was not repealed. It remains part of the law of the State. Over the last decade, in the way of these things, there has been a revival in Australian law of notions of preventive detention for "the protection of the public"[88]. This has been given effect in legislation providing for lengthy mandatory imprisonment for repeat offenders[89]; additional sentences of indefinite detention[90]; and specific legislation addressed to certain long-term prisoners[91]. So long as such laws are constitutionally valid[92], when they are invoked (as here) it is the duty of courts to uphold them and of sentencing judges to apply them in accordance with their language and purpose. In the present appeal, no challenge was raised to the constitutional validity of the Habitual Criminals Act.
[87]New South Wales Law Reform Commission, Sentencing, Discussion Paper No 33, (1996) at 136-137 noted by Buddin J (2003) 141 A Crim R 56 at 84 [109].
[88](2003) 141 A Crim R 56 at 81 [98]. See also White (1968) 122 CLR 467 at 471.
[89]See eg Criminal Code Amendment Act (No 2) 1996 (WA), enacting a new s 401 of the Criminal Code (WA). Northern Territory laws to like effect were repealed in 2001 by the Sentencing Amendment Act (No 3) 2001 (NT), Juvenile Justice Amendment Act (No 2) 2001 (NT) and other cognate laws. See Neal and Bagaric, "After Three Strikes – The Continued Discriminatory Impact of the Sentencing System Against Indigenous Australians: Suggested Reform", (2002) 26 Criminal Law Journal 279 at 280.
[90]Under the Criminal Code (WA), s 662 later Sentencing Act 1995 (WA), s 98 considered in Chester (1988) 165 CLR 611. See also Lowndes (1999) 195 CLR 665; Thompson (1999) 73 ALJR 1319; 165 ALR 219; McGarry (2001) 207 CLR 121.
[91]Such legislation was considered in Baker v The Queen (2004) 78 ALJR 1483; 210 ALR 1 dealing with the Sentencing Act 1989 (NSW), s 13A; and in Fardon v Attorney-General (Q) (2004) 78 ALJR 1519; 210 ALR 50 considering the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q).
[92]Such as the Community Protection Act 1994 (NSW) considered in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
Invocation of the 1957 Act:The respondent defended the confirmation of the order pronouncing the appellant an habitual criminal under the Habitual Criminals Act. It supported the approach of the majority in the Court of Criminal Appeal. The respondent emphasised the separate character of that order as shown by the terms of the Habitual Criminals Act (particularly when contrasted with legislation of other States and when read in the light of the specific provision for a separate appeal against the pronouncement contained in the Appeals Act[93]). The respondent submitted that the pronouncement under the Habitual Criminals Act was a distinct and severable penal disposition and was so treated by the majority who had therefore correctly given deference to the discretionary content of the decision of the sentencing judge that sustained the pronouncement.
[93]s 5E.
In so far as the Court of Criminal Appeal was obliged, once it granted (as it did) leave to appeal from the pronouncement by the sentencing judge, to reconsider for itself the appropriateness of that pronouncement, the respondent argued that such reconsideration had been sufficiently discharged by the majority. In his reasons, before pronouncing the appellate orders, Sully J had set forth the new and additional medical evidence concerning the appellant. He therefore had that evidence in mind when reaching his conclusion[94] that the pronouncement that the appellant was an habitual criminal in accordance with the Habitual Criminals Act should be confirmed.
[94](2003) 141 A Crim R 56 at 81 [98].
The respondent also laid emphasis upon the statement in the reasons of Sully J that, the Habitual Criminals Act having been invoked, the sentencing judge had deduced "correctly as I respectfully think" that the statutory preconditions had been established[95]. It was said that this phrase sufficiently indicated separate and fresh consideration by the majority in the Court of Criminal Appeal of the correctness of the pronouncement under the Habitual Criminals Act in this case.
[95](2003) 141 A Crim R 56 at 81 [98].

Sully J then proceeded to explain how he arrived at the orders he proposed in substitution for those of Freeman DCJ.
In the quoted passages, Sully J does not explicitly consider the "fresh evidence as to mental disorder" referred to in ground 9. Counsel for the appellant, in the course of argument before this Court, said that the appellant's "only point" was that expressed in the ground of appeal on which special leave was granted. But he nonetheless drifted into complaint about this. That complaint should not be treated as a reason for allowing the present appeal, for two reasons.
First, it formed no part of the ground of appeal in respect of which special leave to appeal was granted. No application to amend was made.
Secondly, the following circumstances must be borne in mind. The appeals were argued before the Court of Criminal Appeal on two days, 5 December 2002 and 14 March 2003. On the latter day, judgment was reserved, and subsequently delivered on 8 May 2003. The third of the three fresh reports was dated 11 March 2003 – three days before the resumed hearing. The Crown did not oppose the reception of the "fresh evidence" on the application for leave to appeal against the pronouncement and the imposition of a sentence of 14 years imprisonment[141]. The reports were considered and carefully analysed in relation to the appellant's successful appeal against the sentences for the substantive offences. Although Sully J made no reference to the "fresh evidence" in considering ground 9, it is unthinkable that it was not in his mind, and was not taken into account, in that regard.
[141]R v Strong (2003) 141 A Crim R 56 at 92 [131].
Was the ground of appeal now relied on put to the Court of Criminal Appeal?
When complaint is made of the handling by intermediate courts of appeal (and trial courts) of proceedings before them, it is imperative to keep steadily in mind what it was that those courts were asked to determine. It is unfair for appellants to criticise them for failing to deal with what they were not asked to deal with. Subject at least to the need to prevent possible miscarriages of justice in criminal cases, appellants who make criticisms of that kind face serious obstacles in having those criticisms accepted.
The ground of appeal relied on in this Court does not appear in the grounds of appeal relied on in relation to the Act in the Court of Criminal Appeal.
As appears from the part of Sully J's reasons for judgment emphasised in the quotation set out above, his Honour was apparently not conscious of any argument that, if the sentences for the substantive offences were to be set aside, the Court of Criminal Appeal should proceed to reconsider the pronouncement and sentence under the Act afresh, without any need to identify an error in Freeman DCJ's discretionary judgment on that subject.
Although the appellant was represented in this Court by the same junior counsel as appeared in the Court of Criminal Appeal, different senior counsel appeared. He was not able to assure the Court that the ground now relied on had been put to the Court of Criminal Appeal.
Further, there is no trace in Buddin J's reasons for dissenting from the majority of the Court of Criminal Appeal that the ground relied on was put to that Court.
In these circumstances, it is plain that the ground now being relied on is being raised for the first time in this Court.
That background should be borne in mind while considering the appellant's argument to this Court that the Court of Criminal Appeal, by not acting on the legal position reflected in the ground of appeal relied on in this Court, "utterly misconstrued the position", took up a stand having only a "flawed … justification", and "very clearly and very openly disclosed … reasoning [which] demonstrates error." The argument was that although the Court of Criminal Appeal altered the further sentence passed consequent on the pronouncement, it failed to consider for itself whether the pronouncement should be made: "they did get it right in part, but by an accident, as it were." Counsel spoke of a "grievance we have about the way in which we were dealt with in the Court of Criminal Appeal." The grievance was that: "we have been deprived of an opportunity to have persuaded the Bench that there should not have been a pronouncement." Another way in which the appellant's position was put in the course of oral debate was that the Court of Criminal Appeal had "telescope[d] the process", "surrendered the exercise of … discretion" to pronounce the appellant an habitual offender to the sentencing judge because it "had donned these limiting spectacles", had "put the blinkers on", had "put weights in the saddle that should not have been there", and was wrongly "looking down a lens which has a filter".
However, there is no point in this Court considering the ground of appeal which was belatedly relied on unless the failure of the Court of Criminal Appeal to do so can be said to have created the risk of a miscarriage of justice.
Even if the Act is to be construed as the appellant contends, and even if the Court of Criminal Appeal ought to have proceeded in accordance with that construction, there is no chance that the outcome would have been different. The appellant says that what the Court of Criminal Appeal should have done, once it decided to interfere with the sentence for the substantive offences, was to consider for itself whether to make a pronouncement and sentence pursuant to s 4 of the Act. What it actually did was to reject the contention that there was any error in the making of the pronouncement, either in the light of the materials before Freeman DCJ or in the light of the fresh evidence, while finding error in the sentence imposed. The considerations which led it to those conclusions included the length and seriousness of the appellant's record, which revealed him "to be a repeat offender in connection with sex-related offences"; the serious nature of the Crimes Act offences, with their impact on the victim; the need to protect society against the appellant; the seriousness of the appellant's mental problems "as a person whose real psychiatric problems are superimposed upon a background of economic and social disadvantage, and upon a history of drug abuse"; and the fact that, in the view of the sentencing judge, a view plainly shared by the majority of the Court of Criminal Appeal, the appellant was "a very dangerous man, whose antecedents suggested that he was a recidivist with, at best, very slender prospects of future rehabilitation; and, as such, a present and likely future threat to women."[142] There was ample evidence to support these points. Counsel for the appellant accepted that if the appeal succeeded and a process of re-sentencing proceeded according to the law as he submitted it to be, "it may be [that] the same outcome in substance will be achieved". Had the Court of Criminal Appeal proceeded in the manner urged, that possibility must be regarded as a certainty. There is no reason to conclude that those considerations would have led it to any other conclusion if, instead of proceeding in the way it did, it had proceeded in the way advocated by the appellant.
[142]R v Strong (2003) 141 A Crim R 56 at 63-65 [29]-[36], 67 [47], 70-72 [63]-[68] and 81 [98].
The majority of the Court of Criminal Appeal were "wholly unpersuaded that [the sentencing judge's] discretion to pronounce … miscarried"[143]. While there may be cases of the same general kind as the present in which the point of construction relied on by the appellant may have led to a different result in the Court of Criminal Appeal, this case, taking account of its particular circumstances, is not one of them.
[143]R v Strong (2003) 141 A Crim R 56 at 81 [99].
For these reasons, no risk of a miscarriage of justice existed in consequence of the Court of Criminal Appeal having proceeded as it did.
There is therefore no point in considering what the correct construction of the Act is, since whatever it is, it could not improve the position of the appellant.
Order
The appeal should be dismissed.