Strong v The Queen

[2004] HCATrans 463

[2004] HCATrans 463

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S152 and S153 of 2004

B e t w e e n -

ROBERT JOHN STRONG

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 NOVEMBER 2004, AT 10.03 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS G.A. BASHIR, for the appellant.  (instructed by Legal Aid Commission of NSW)

MR G.E. SMITH, SC:   May it please the Court, I appear with my learned friend, MS D.M.L. WOODBURNE, for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours have seen from the written submissions that one of the controversies between the parties is how the legislation in question in this case ought to be construed.  May I take your Honours immediately to those provisions which are found in the Annexure 1 bundle of legislation, and, in particular, the Habitual Criminals Act 1957 (NSW) section 4, so as to make the following matters of emphasis concerning provisions that your Honours have already seen thoroughly expounded in the written submissions.

The first thing is that in section 4(1), which is the relevant provision, the condition of potential application of these provisions is that a person has been convicted in certain circumstances. The second is that the person has on at least two occasions served terms of imprisonment in certain circumstances. Then, and only then, there is the possibility of the judge before whom such person has been so convicted – and we have, for convenience, called that the “substantive offence” in our written submissions – comes to be satisfied or not of certain matters that are introduced by the expression:

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 –

Those are the words which condition the availability of this rather condign power. 

What then becomes available to that convicting court, that is, the court before whom the person has been convicted of the substantive offence, is that:

in addition to passing sentence upon such person for the offence –

Now, that is an important expression, bearing in mind what the respondent argues in relation to it, particularly in relation to the cognate Western Australia legislation.  So in addition to passing sentence for the offence of which the person is so convicted, what we have been calling, for convenience, the “substantive offence”, may: 

pronounce the person to be an habitual criminal and shall thereupon – 

and “thereupon” obviously means upon such pronouncement –

pass a further sentence upon the person in accordance with the provisions of section 6.

I pass immediately then to section 6, because one sees that the further sentence following upon such a pronouncement under subsection (1) is:

a sentence of imprisonment upon such person for a term of not less than five years nor more than fourteen years.

In this case, as your Honours know, the maximum was that originally imposed by the sentencing judge. Under subsection 2, with language that may at first seem curious but, we submit, works its obvious intention, that sentence of imprisonment imposed by the section 4 power, pursuant to section 6, is to be “served concurrently with”, amongst other sentences, the sentence for the substantive offence. That would follow, because the further sentence is literally imposed after the sentence for the offence. The sentence for the offence commences upon it being imposed and it is therefore being served at the time the person is pronounced to be an habitual criminal.

Against that statutory background, it is said by the respondent in this case that no error was shown in the Court of Criminal Appeal by regarding the pronouncement and the further sentence – which was, in fact, quashed and a lesser sentence imposed in the Court of Criminal Appeal – as freestanding in this sense, that upon the sentence for the substantive offence being quashed and varied, it was not affected as to a major premise of the pronouncement itself. 

The respondent says there was no error because the terms of the New South Wales legislation show, in a number of ways that your Honours have seen described in the written submissions, that these are separate juristic exercises.  At the outset, we seek to take each of those so‑called indications of a separateness in order to challenge the proposition that that is a reason why the Court of Criminal Appeal was entitled to regard the pronouncement as not integrally affected by the error they had detected in the sentencing for the substantive offences.

The first, if we may take it in an order differently from that set out in the written submissions, is that there are two separate appeal rights.  In our submission, that can be of no moment because exactly the same quality was observed and explicitly so by this Court in McGarry of the Western Australian legislation.  That had no effect whatsoever in persuading this Court in McGarry that it was not one sentencing decision.  The second matter to which I wish to come is the proposition that is advanced in the respondent’s written submissions that in this case, by contrast with the West Australian case, the further sentence is not “for the offence”, that is, what I have been calling the substantive offence.

In order to make good my argument on that, it would be convenient to go to the report in McGarry (2001) 207 CLR 121, though, of course, your Honours also have, apart from the quotation in that report, the test of the West Australian legislation which has been provided for comparison. I say “for convenience” because at paragraph 4 of the report, pages 124 to 125, in the majority reasons, one finds the provisions, the relevant provisions, of section 98 of the Sentencing Act (WA) set out. Now, that Act, of course, has differences. It is ‑ ‑ ‑

McHUGH J:   Well, not only has it differences, but one is entitled to ask whether McGarry’s Case has got the slightest thing to do with this case.  This case turns on the construction of the statute.

MR WALKER:   That is a threshold question, yes, your Honour.  For the reasons I am about to put, these are provisions which are comparable, that is, a meaningful and useful comparison can be performed, observing differences which are material and which are immaterial, and producing as a matter of legal reasoning the same outcome in this case as in McGarry, not because the statutes have phrasing which ought to be regarded as materially the same, but because the ideas which are conveyed by the different statutory words in Western Australia were dealt with in this Court in a way which, in our submission, does compel an outcome in favour of the appellant here.

McHUGH J:   But can I put to you one significant difference between the two statutes, which seems to me to make McGarry’s Case totally irrelevant, which is the fact that the sentence the judge imposes under the Habitual Criminals Act depends on the sentence that the judge imposes for the substantive offence.  I mean, at least ‑ ‑ ‑

MR WALKER:   Your Honour is putting that about Western Australia or New South Wales?

McHUGH J:   I am talking about New South Wales.

MR WALKER:   New South Wales, yes.

McHUGH J:   There has to be a minimum sentence of five years, it has to be a maximum sentence of 14 years.

MR WALKER:   That is for the habitual criminals.

McHUGH J:   For the habitual criminals, the Criminals Act.  Well, if you have a safebreaker and you are going to give him eight years, and you are going to apply the Habitual Criminals Act, you are not going to give him less than eight years.

MR WALKER:   No, quite.

McHUGH J:   You are going to give him more.

MR WALKER:   Quite.

McHUGH J:   So the two provisions are so interchangeable, it just seems to me at the moment, I have read Mr Smith’s submissions ‑ ‑ ‑

MR WALKER:   Yes, your Honour.

McHUGH J:   They are there together.

MR WALKER:   Yes.

McHUGH J:   I mean, there was a time when I first came to the Bar, when this Act, the Habitual Criminals Act, was, I will not say frequently used, but it was regularly known as the “key” and criminals feared it.  You had the shoplifter with a string of – I remember a woman, Thelma Green who got 12 or 18 months for shoplifting and she got 10 or 12 years, I cannot remember which, from Judge Clapin I think it was, under this Act.

MR WALKER:   And we know from decisions such as Roberts (1959) 61 SR (NSW) 681, which has been discussed in my learned friend’s written submissions and in our reply, we know from that that there was a time when the custom was so well established of, what I will call an imbalance between the substantive sentence and the habitual criminal’s sentence, that there was, as it were, the pity remarked in the Full Court in that case that the appeal by what might be suspected to be a career criminal - the appeal against the habitual criminal’s part of the sentence having been upheld, alas, they remarked, nothing could be done about the very low, indeed, the apparently customarily very low sentence for the substantive offence.

McHUGH J:   Those who think that professional criminals are not influenced by sentences ought to remember the history in New South Wales of the safebreakers who, as a class, moved out of safebreaking into shoplifting because they were getting very heavy sentences for safebreaking and shoplifting they were getting 12 months.  It was sentences under the Habitual Criminals Act that scared the daylights out of them. 

MR WALKER:   Your Honours would appreciate, I do not stand before you claiming to represent a person who says that sentencing does not have an effect, far from it.  May I say ‑ ‑ ‑

KIRBY J:   Why did the Habitual Offenders Act fall into disuse?  The Law Reform Commission indicates that it did.

MR WALKER:   We know that the then director was one of those who recommended its repeal.  I fear I may be really only rephrasing your Honour’s question.  It did fall into disuse, but I have no point, of course, about fashion. 

KIRBY J:   No, I realise that, but I was just curious as to why it may be that there was a greater enlightenment in the judiciary, I do not know.

McHUGH J:   Not only in the judiciary, but penal theory has changed and the view ‑ ‑ ‑

MR WALKER:   The word “reformation”, I think, may have made some people uncomfortable.  The fact is, it is there.  I have no point to make about it.

McHUGH J:   The view became prevalent that people should be imprisoned for what they had done, not for what it was feared they might do in the future.

MR WALKER:   Quite.  As your Honours will understand, I have no validity or any other argument about the terms of this statute, just about how it should have been applied in the Court of Criminal Appeal. 

Now, in relation to the matters that Justice McHugh has raised, may I simply say, as briefly as I can, yes, there is the integral relation between the sentence for the substantive offence and the question of pronouncement and the further question of further sentence under the Habitual Criminals Act of the kind that his Honour has raised for my consideration.  And, of course, without resort to any case law, let alone case law on a different statute, we embrace that as our argument.  Your Honours have seen that in our written submissions.  It does not require elaboration. 

It is for those reasons that we submit, with respect, that the Court of Criminal Appeal utterly misconstrued the position they were in at the stage reached when they set aside the sentence for the further offence.  All we seek, as your Honours know, is for a full go, all at once, in the Court of Criminal Appeal on the matter, which will include the question whether there should have been a pronouncement.

KIRBY J:   Why would we do that, if we agreed with Justice Buddin’s approach?  Why would we not just confirm the minority order in the Court of Criminal Appeal?

MR WALKER:   It is within the power of this Court to do that, but the way that matters fell out at the application for special leave would require, as it were, this Court first to liberate me from that before I could put that argument.

KIRBY J:   I see, yes.  The grounds of special leave were limited, were they not?

MR WALKER:   Of course, this Court has that power, but that is not an issue which I am at liberty to put before the Court unless and until the Court says so.

KIRBY J:   I understand that.  You answered the question.  You said there were three points and you have given us two.  What was the third point?  The first was the procedural ‑ ‑ ‑

MR WALKER:   I want to now go to the comparison with the Western Australian legislation to make good the proposition that as a matter of the reasoning in McGarry and the authority of this Court, the same result should follow.  Now, I entirely accept the strictures that Justice McHugh has expressed in relation to the use of this case law.  My point in qualification of that acceptance is simply that the statute in McGarry, different as it was, has at its heart concepts taken by this Court in a way which apply directly to the different provisions with similar concepts of the New South Wales statute.

KIRBY J:   I have not read McGarry for some time, but my recollection of it was that we picked up in McGarry words used by Justice Hayne in the Court of Appeal of Victoria, did we not, in respect of, again, the different Victorian legislation but sufficiently similar that it related to the addition of punishment not for what the person had done only but for a categorisation of the person.

MR WALKER:   A component of time to be served which, as it were, by definition, would not reflect proportionality because that would already been taken up in the so-called substantive sentence.  I was about to go to paragraph 4, in McGarry 207 CLR at pages 124, 125 which, just for convenience, has the provisions that your Honours have more extensively otherwise and I was about to observe the differences. 

The differences are, first, that in the West Australian legislation, making this an a fortiori case, the condition for the availability of the comparable power was, in fact, that there had been a sentence passed.  Your Honours will see that from paragraph 98(1):

If a superior court –

(a)      sentences an offender for an indictable offence –

et cetera.  That was to be an accomplished act which had to be accomplished before – and I drop down some lines:

it may in addition to imposing the term of imprisonment for the offence –

We have made a typographical mistake in our written submissions in reply.  We omitted the parentheses round the expression “the nominal sentence” but those parentheses are of some force.  The comma follows that expression; the comma does not follow the word “imprisonment” in the line beforehand.  The nominal sentence, what we have been calling for the New South Wales statute the substantive sentence, is the one that is the term of imprisonment for the offence.  In addition to that it may order the offender to be imprisoned indefinitely and it is not surprising that that is not regarded by the text of that provision as being an order of imprisonment for the offence.  An indefinite term of imprisonment would be quite difficult to understand in terms of proportionality, severity and the like.

It is said against us that, in the West Australian legislation – and one can see this in several places, most obviously in paragraph 5.9 on pages 6 to 7 of my learned friend’s written submission, that the order of indefinite imprisonment is “for the offence”, quoting the expression, but it is not. 

KIRBY J:   But it is more than that.  It provides for “indefinite imprisonment”.

MR WALKER:   Quite so.

KIRBY J:   I am just looking at Thompson now and that was what Justice Hayne said in Moffatt in Victoria so it is the very nature of “indefinite imprisonment” that lifts that class of case to a level somewhat higher than the type of imprisonment that is permitted under the legislation here.

MR WALKER:   Going up to 14 years is very serious as well, your Honour.

KIRBY J:   Indeed. 

MR WALKER:   My present point is simply this, that the respondent puts an argument to blow out of the water, as it were, our reliance on McGarry, that in the Western Australian legislation the order of indefinite imprisonment is one which is also for the offence, but my point is the text of the West Australian legislation is to the contrary.  It has brought about the order of further imprisonment, indefinite imprisonment, by reason of the offence because without the offence there would not be a conviction, without the conviction there would not be the sentence which paragraph 98(1)(a) requires as a prerequisite for the availability of that power, but the text makes it very clear that it is the, what we call substantive, what they call nominal, sentence which is for the offence and the extra is for the different matters, overlapping but different matters, called up to justify the indefinite imprisonment. 

In our submission, that is enough then to bring in its train, by way of analogical application – not stare decisis, but analogical application – what one then sees in paragraphs 7, 8 and 9 on pages 125 to 126 of McGarry.  We know, as I started by pointing out, that in paragraph 8 of McGarry it was equally observed, as has been observed in this case, that there are two separate appeal rights, to which the colloquial response is, so what?  The response of this Court in paragraph 8 of McGarry was:

Even if that were so –

that is, two appellate processes were engaged, as is clear in this case –

it should not obscure the fact that the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence –

and may I interpolate, we know the latter was a prerequisite for the former –

form part of a single sentencing decision.

In paragraph 9, it is said that from that description, which is this Court’s description of that kind of legislation, “It follows” – the very next words in paragraph 9 – that when the nominal sentence goes, so does what in New South Wales would be the pronouncement and the further sentence. 

Now, in our submission, of course, there are differences between the legislation, but they are differences which make our case a fortiori McGarry. Why do I say that? Well, in our case we know that the provisions in question do not set out the sentence, the substantive sentence, as a prerequisite, but rather the conviction. The wording of the exercise of the power in section 4(1) links even more closely, as a matter of semantics and syntax only – conceptually, we submit they are the same – by saying, in addition to passing sentence for the offence:

the judge may . . . pronounce the person to be an habitual criminal and shall thereupon pass a further sentence –

A sequencing which is even tighter than the sequencing one found in section 98 of the Western Australian Act.

KIRBY J:   I have a sense of unreality about this issue, because can it seriously be suggested that when one imposes separately what you have called the “substantive” punishment and then is considering whether or not to make an order under the Act and what sentence would follow from that, that you do this completely disjoined? 

MR WALKER:   Yes, it is. 

KIRBY J:   Well, that – I mean, I just do not understand how one can be looking at a human being who is before the court, who is to be sentenced on the occasion of a new offence but with reference to other offences, that one does not look at the totality of the offender.

MR WALKER:   Your Honour, it is seriously suggested.  I have now put, together with our written submissions, the argument why, in our submission, your Honours ought not to entertain the notion. 

KIRBY J:   Has it ever been said by a New South Wales court?  There are some passages that are quoted by the respondent.  Are there any that come directly to that point, as distinct from saying that it is a separate exercise?  Do any say that it is disjoined?

MR WALKER:   No.  The closest one gets to that, and it does not come anywhere near close enough, is the decision I referred to earlier.  I hope your Honours have it with you now.  That is R v Roberts [1961] SR (NSW) 681, and that is, of course, against the background that Justice McHugh has drawn to attention. There are two appeal rights in New South Wales since 1957. The provisions of section 5E of the Criminal Appeal Act are, upon our research, the same now as they were then. 

KIRBY J:   Can I ask you to pause there.  There was a Habitual Offenders Act before 1957 ‑ ‑ ‑

MR WALKER:   1905.

KIRBY J:   And was the pronouncement of the order not appealable before 1957?

MR WALKER:   Yes, there was a different adaptable provision for the 1905 Act.  Yes, your Honour.

McHUGH J:   Was it not an indefinite sentence under the – it was indefinite, was it not?

MR WALKER:   Yes.

McHUGH J:   And the 1957 Act ‑ ‑ ‑

MR WALKER:   And 1957 represented enlightenment, your Honour.

McHUGH J:   Enlightenment, yes.  They brought in the maximum period.

MR WALKER:   That is right, yes.  I should not use such words.  Yes, there was an appeal right.  The point about separate appeal rights is, in our submission, a furphy.  That it must be so is seen from this Court’s dealing with the separate appeal right in the West Australian context in McGarry.

KIRBY J:   That might be so, but the legislation is the pre‑enlightenment in Western Australia, to use that word, but it does strengthen the respondent’s case to this extent, that it is a little ingredient in building an argument for disjoinder.

MR WALKER:   Why I draw it to attention at the very outset is that, of course, I acknowledge, bereft of authority, what a useful first step that would be for the respondent in its argument.  I draw it to attention immediately because in McGarry it is there and it does not have the effect for which the respondent contends.

McHUGH J:   But under the 1905 Act you were detained at the Governor’s pleasure once the declaration was made, were you not, and that gave rise to the saying that the key was thrown away.  That jargon carried on under the 1957 Act as well, even though there was a maximum of 14 years.

MR WALKER:   It was not thrown away; it was put on the shelf for probably a fairly long time.  All I want to say about Roberts is this.  Roberts does not stand for the proposition that the New South Wales legislation is to be construed differently from the way the Western Australian legislation was construed in McGarry on the point in hand.  The point in hand is what does the appellate court do when the substantive sentence is altered, it having ‑ ‑ ‑

McHUGH J:   Not merely altered, Mr Walker.  Supposing for some reason the conviction is quashed.  What happens then?

MR WALKER: The respondent’s argument does not merely not deal with that; it pretends it is not there as a point. As a point it is devastating to the respondent’s position. If the respondent is correct about the separation in conceptual terms of this pronouncement, then how do they deal, except by violence to the text that they say they are applying, with a conviction being set aside? They do not. Their argument is flawed at the outset because we know from the provision of section 4 that it is horse and carriage. The sentence for the offence is the horse. The sentence – further sentence it is called – it is further because it has a relation – is the carriage. They must go together.

McHUGH J:   But the conclusive point is it must be concurrent with the sentence.  If the conviction goes, there is nothing that can be concurrent.

MR WALKER: Yes, and when one, taking seriously a point which, in our submission, does not deserve this seriousness, if one seriously then asks how is one to exercise the discretion called for by the New South Wales statute required by the words “in addition to” and the requirement in section 6(2) for concurrency so that you are actually contemplating the person whom you have described in relevant features for the sentencing for the offence and you are now considering the question how on earth does one do that, forgetting that there has been an alteration to the sentence which has all the Veen (No 2) components, including proportionality and prevention and deterrence and the like, including specific deterrence, how do you do that, pretending that there has not been a change in something which is integrally related? 

In our submission, that really is an end of a justification of the position taken by the Court of Criminal Appeal.

GLEESON CJ:   Mr Walker, I just want to be clear about what the position taken by the Court of Criminal Appeal was.  The Court of Criminal Appeal actually concluded that the discretion under the Habitual Criminals Act had miscarried.

MR WALKER:   Yes, as to the further sentence, not as to the pronouncement.

GLEESON CJ:   But did that not require the Court of Appeal to exercise its own discretion afresh, and did it not exercise its own discretion afresh?  I am looking at page 328, paragraph 102.

MR WALKER:   Your Honour is there referring to the alteration of the length of the further sentence.

GLEESON CJ:   Yes, the Court of Criminal Appeal in 101 said, “We are not persuaded that the discretion to pronounce him an habitual criminal miscarried” and then at 102 they said, “But we are persuaded” ‑ ‑ ‑

MR WALKER:   The further sentence went wrong.

GLEESON CJ:    ‑ ‑ ‑ that the discretion about what the additional sentence should be miscarried, and, therefore we’re going to ‑ ‑ ‑

MR WALKER:   Alter it.

GLEESON CJ:   Yes.

MR WALKER:   And enormously, from 14 to eight.

GLEESON CJ:   Yes, they made a large alteration.

MR WALKER:   May I say this ‑ ‑ ‑

GLEESON CJ:   Were they not doing the thing that you say they should have done?

MR WALKER:   No, it is a curate’s egg.  Yes, they, through the wrong process, did the right thing in relation to the further sentence, but the same wrong process, namely, regarding the pronouncement and further sentence is somehow protected, notwithstanding the substantive sentence had gone, by a separate House v The King inhibition.  They did not, for themselves – I stress, for themselves – consider the question of pronouncement.  Our grievance is that pronouncement was in the ring, not just further sentence, and paragraphs 101 and 102 at page 328 of the appeal record do manifest the error.  Can I explain very briefly as follows.

We know in paragraph 102 that what Justice Sully found himself driven to as a conclusion, with the reluctancy as described, is that this is the last or residual category in House v The King.  Cannot put my finger on how or why his Honour went wrong, but he did go wrong and wrong because of a very large margin of disagreement encountered in the Court of Criminal Appeal.  That is classic House v The King reasoning.

In paragraph 101, and intellectually consistently, with respect to his Honour, what he had done was to apply the same judicial admonition in relation to sentencing discretion, unfavourably to the appellant in the sense that without considering afresh, in the same way as they eventually came to do in relation to the further sentence itself, they simply said, “Can’t get over the House v The King obstacle for the pronouncement itself”. Our simple point, and our only point on our claim to be treated in accordance with law in the Court of Criminal Appeal, is that everything came, under section 6(3) of the Criminal Appeal Act, to be exercised anew in the Court of Criminal Appeal, not just the terms of imprisonment but also the pronouncement, which is an integral part of the exercise.  That is our grievance.

McHUGH J:   Your point is that, once the original sentence goes, the function of the court in respect of the further sentence was not that of reviewing a discretion, but an exercise of original jurisdiction.

MR WALKER:   Quite, and that is why my answer to the Chief Justice is yes, they did get it right in part, but by an accident, as it were.  By erroneously continuing to apply a House v The King inhibition with respect to the habitual criminals component of the sentencing decision they eventually got to exercising a discretion afresh, which is a section 6(3) point, in relation to the length of the further term of imprisonment, but what they did not do was to exercise afresh – and Justice Buddin has pointed this out – the question whether there ought to have been a pronouncement at all. Of course, for a person in my client’s position, that is a critical question to have the whole of the sentencing decision, once flaws have been identified, performed in accordance with law by the Court of Criminal Appeal without any artificial and extraneous inhibition of a kind demonstrated in paragraph 101.

KIRBY J:   Could one read the Court of Criminal Appeal majority view as [We are now, therefore, proceeding to consider the matter for ourselves.  We have just set out the evidence concerning the appellant’s shocking criminal record.  We have set out the evidence concerning the psychiatric state and its unpromising features, and we will take into account the fact, as we have already said, that Judge Freeman is a very experienced judge in criminal matters.  He reached a view on the need for an order.  We take that into account and we, therefore, do not believe that we should disturb the order that he has made, but will make it again for ourselves].

MR WALKER:   Your Honour is too charitable.  No, is the answer.

McHUGH J:   The language denies it in terms.  You only have to look at paragraphs 96 and 99 to see ‑ ‑ ‑

MR WALKER:   They felt themselves and expressed themselves to be under an inhibition contrary to law, and all we seek is that that inhibition be removed and that they now proceed according to law, accepting as we must, that it may be the same outcome in substance will be achieved ‑ ‑ ‑

KIRBY J:   Yes, I think the Chief Justice pointed that out in the special leave.

MR WALKER:    ‑ ‑ ‑and everyone in my client’s position is to be taken to understand that.

McHUGH J:   In paragraph 99, Justice Sully said, “I am wholly unpersuaded that his Honour’s discretion to pronounce miscarried”.

MR WALKER:   That is right.  It cannot be read in the charitable ‑ ‑ ‑

McHUGH J:   And then he goes on to say, and as if to underline it, he says the more difficult question is whether the sentence which was thereupon imposed was, to borrow from House, upon the facts, unreasonable or plainly unjust so as to justify appellate intervention.

MR WALKER:   This is language which is intractable, and his Honour, with great respect to him, has very clearly and very openly disclosed his reasoning in exemplary fashion, and it demonstrates error.

KIRBY J:   Yes, well, I understand the argument.  I just have regard to the fact that Justice Sully – we are talking about experienced judges – is sitting in the Court of Criminal Appeal repeatedly and he would know ‑ ‑ ‑

MR WALKER:   This has not happened for 30 years.

KIRBY J:   I see, you say this is a new application of the Act.

MR WALKER:   No one has experience. 

KIRBY J:   But he knows the rule that once you found error, as he had found error, you are in a new realm.  You are exercising your own powers under the Criminal Appeal Act.  That is why I wonder if he was not meaning to say, “Well, I am exercising my own powers, but the factual substratum has not really changed, the shocking criminal record is the same, the psychological evidence supplemented is significantly the same, therefore I will have regard to what Judge Freeman did and I will do the same thing”.

MR WALKER:   If only, your Honour, if only.

KIRBY J:   If he had said that, then you would not be here, I would think.

MR WALKER:   No, I would not have the point, the only point, that brings me here.

KIRBY J:   Justice Buddin makes a few extra points.  He says it was very unsatisfactory the way it was done at first instance.  Two years have past.  Once you have found error, there is a good reason to go back and do it again after two years and look at the whole thing for such an order in the light of fresh material.

MR WALKER:   Quite so, for all the reasons your Honours dealt with Thompson in the way you did.  For exactly those reasons, yes.

KIRBY J:   Well, it is a very short point then, really, in this ‑ ‑ ‑

MR WALKER:   Yes.  May I attempt very shortly to sit down with just two points.  I wanted to complete what I was going to say about Roberts; I will do that without taking you to the text.  The point in Roberts was that, no doubt well advised, the only appeal was under section 5E against the pronouncement and further sentence. The court plainly regretted – see Sir Kenneth Street’s reasons – that they could not make section 6, which was enlivened by section 5E, operate so as to permit review of the substantive sentence, given that they were now re‑exercising a discretion. That is because there were two separate appeal rights.

My friends rely upon that as showing that there was this separation upon which they rely for their main point. Not so. Section 5E takes you to section 6, just as section 5 takes you to section 6 for the re‑exercise. Both were in play in our case, and in McGarry exactly the same statutory structure was present. That is why it does not matter, for example, that in a case which is not ours, namely, a Magistrates case where, by consent of the accused, an indictable offence is dealt with summarily – section 4(2) – there can be a separation of the sentencing by the Magistrate for the offence and by a judge for the habitual criminals ‑ ‑ ‑

KIRBY J:   And, as is pointed out, of the appellate line.  If it is done by the Magistrate, it goes to the District Court.

MR WALKER:   Quite, it is different.  However, is it imaginable that the appellate court, seized of the habitual criminals issue, could possibly regard as either irrelevant or as not affecting its position that there had been a successful appeal against the magistrate’s sentence?  Of course not.  In other words, yes, there is separation.  One sees that there are separate appeal rights, as observed in McGarry.  Yes, there is separation – one sees that there is the expression “further sentence” in the New South Wales Act.  There is the expression “order” distinguished from the expression “sentence” in the West Australian Act.  Those are all separations, but they do not work the conceptual separation upon which the respondent relies. 

McHUGH J:   What do you say to one other point that is perhaps against you and that is that under the 1905 Act the declaration of being an habitual criminal was actually part of the sentence.  You were sentenced and the declaration was made as part of the sentence and the declaration having being made, you stayed in prison at the Governor’s pleasure.  The 1957 Act departed from that, it separated.

MR WALKER:   You have this model of concurrency.  You have this description of being a further sentence ‑ ‑ ‑

McHUGH J:   I was just going to say that the declaration and sentence under the Habitual Criminals Act 1957 imposed ‑ ‑ ‑

MR WALKER:   Pronouncement and further sentence.

McHUGH J:   Pronouncement, yes - imposed a separate sentence, whereas in the 1905 Act it was part of the same sentence.

MR WALKER:   The short answer is, the language of the New South Wales Act 1957 conveys the linking, the yoking, of the two parts of the process – it is really, I suppose three parts, the second and third go together, pronouncement and further sentence go together - in an even closer way than the Western Australia legislation considered by this Court in McGarry, that is why I say we are an a fortiori case.  The fact, therefore, that historically the 1905 Act used words which even more obviously have them as components of the one juristic exercise therefore does not place the 1957 Act on the wrong side of the line because we have McGarry showing us of a situation which is plainly more favourable to the respondent’s position than our case. 

The New South Wales case has this Court very authoritatively and very clearly saying no, one sentencing decision.  Not to be forgotten in McGarry, the sentence:  see 98(1)(a), the sentence for the substantive offence, that is the first of the prerequisites, it is an accomplished ‑ ‑ ‑

GLEESON CJ:   It may be, if your argument is correct, that what distracted the attention of the Court of Criminal Appeal is that there were several months which lapsed between when Judge Freeman imposed the nominal sentence on the appellant and the proceedings to have him declared an habitual criminal.

MR WALKER:   Yes, and what has fallen away before we get to this Court, of course, what I will call the procedural historical matters, your Honours will have seen vestiges or I fear more than vestiges of that in the record here in relation to the proving of the prerequisites in terms of serving imprisonment in terms of the psychiatric evidence and the lack of psychiatric evidence.  So, yes, what the Chief Justice, with respect, has said is an explanation.  There was an historical separation in the narrative before them of the process that may well have distracted.  However, in our submission, it does not permit one to read what they did otherwise than in the way that Justice Sully describes it.

McHUGH J:   I cannot remember whether it was common for judges to make a sentence and then make the pronouncement under the Habitual Criminals Act, but certainly from my recollection there was often a reasonably lengthy period from conviction to the declaration or for pronouncement ‑ ‑ ‑

MR WALKER:   They were not going anywhere, your Honour.  I suspect that was part of the reason.

McHUGH J:   It was probably - because notice had to be given that you ‑ ‑ ‑

MR WALKER:   And to get reports.

McHUGH J:   Yes.

MR WALKER:   It was the old 1905 model, made the pronouncement declaration part of the sentence, but the, what in the 1957 model became a further sentence, was not a matter for the court at all.  Parliament simply decreed it to follow.  It did not depend on judicial act.

GLEESON CJ:   Underlying this may be a sense on somebody’s part – it may be a sense on the part of a number of people – that the maximum penalties for intimidation and stalking are inadequate to deal with the kind of problem presented by this offender.

MR WALKER:   Yes, and that matters which would otherwise increase a sentence by faithful and orthodox application of the principles enunciated in Veen (No 2) would, as it were, butt up against the statutory maximum too soon.  As I say, we do not have any point or grievance about what Parliament has provided as a possibility to be suffered by my client, just about the way in which the process was carried out. 

KIRBY J:   Do not get too enthusiastic for the statute, as far as I am concerned.  I hold the same views as I expressed in Fardon.

MR WALKER:   As your Honour knows, I have no brief for enthusiasm or otherwise.  I am trying to concentrate simply on the grievance we have about the way in which we were dealt with in the Court of Criminal Appeal. 

Your Honours, the second and last point I wish to add was simply this.  It can be seen from the closing paragraphs of Justice Sully’s reasons, and by that I refer in particular to paragraph 103 found on pages 328 and 329, that what his Honour had in mind was that during this eight year period to be served concurrently, certain things could happen which, for example, are described at 328, line 52, as “careful and sensitive on‑going monitoring and treatment”, a reference to the possibility of release back into the general community with “very careful ongoing supervision”.

KIRBY J:   What does the addition of that have to do with it?

MR WALKER:   We were deprived, by reason of the approach taken in paragraph 101 to the House v The King inhibition about considering the pronouncement – we were deprived, as can be shown when considering this paragraph 103, of the material being taken into account in relation to the pronouncement which showed – see Dr Neilssen in particular – that there was indeed psychosis, which was being addressed by a new and better drug.  That is exactly the kind of matter which would have been considered had the pronouncement been considered afresh, rather than protected behind a House v The King barrier.  My simple point is this, in other words, there is real substance and materiality in the opportunity for the pronouncement to have been considered afresh in the Court of Criminal Appeal.

Our friends say, “But why would you compartmentalise a reading of his Honour’s judgment?  This material was referred to in relation to the successful appeal against the substantive sentence.  Why would you assume it did not also inform the approach taken in relation to the partially successful appeal against the Habitual Criminals Act order?”.  The short answer to that is it can be seen from paragraph 103 that there has been, in fact, no finding made as to whether to accept Dr Neilssen or, indeed, the first report of Dr Allnutt or not.  That is exactly the kind of material which, for the reasons set out by Justice Buddin, needed to be decided upon, considered, fully taken into account, rather than, as Justice Sully says, that subject matter being the subject of administrative consideration in the future, in the present system.

There is the world of difference between it being taken into account by the judges upon considering for themselves the question of pronouncement and being taken into account by authorities with what is called “added flexibility” at 329, line 3, which presumably means extra time.  His Honour said at line 13:

No doubt matters of that character cannot be rushed –

That is quite at odds with what we present as a grievance to this Court.  Of course they should not be rushed.  That might explain adjournments, but they had to be decided and they were not.

Your Honours have the references to the psychiatric evidence.  The merits of it are not before this Court.  I raise it in‑chief simply in anticipation of an argument adumbrated in our learned friend’s written submissions to the effect that the new material did not add anything particularly new.  The short answer to that is that it most certainly did.  There is a diagnosis in particular to be found at pages 259 and 260 of the appeal book which is quite at odds with the uncertainty and the suggestion of intermittent psychosis in the past.  May it please your Honours.

KIRBY J:   Could I just ask you this.  There is no notice of contention, but is it possible to approach the matter on the footing that it is true that on the face of things, subject to what is said in the respondent’s case, that Justice Sully did not approach his orders in the correct way, but that he ultimately arrived at orders which are sustainable and, indeed on one view, likely under this Act, given that he had medical evidence before him, he had the shocking list of convictions, he had the fact that the appellant really was not terribly co‑operative to many of the psychiatrists and not very forthcoming for various reasons, no doubt, and that therefore in the end the orders made were right, even though not reached by the correct legal process.

MR WALKER:   My answer comes in two parts.  The first is to refer back to what I have just concluded with, namely that we were, as your Honours can see from paragraph 103 to which I have taken your Honours, deprived of the opportunity because of the inhibition wrongly felt by his Honour of having findings made and opinions formed by the court on the question of pronouncement on the latest material.  That was not done.  So that what your Honour describes is really looking forward and predicting what by a different process might achieve the same result.  This is a case about process.

The second answer is, as your Honour points out, there is no notice of contention - that should be sufficient – and of course there is no equivalent of a proviso.  All we seek is the proper consideration by the Court of Criminal Appeal, accepting everything that your Honour has pointed out.

KIRBY J:   And I suppose you can add in a matter which involves the application of an Act which by analogy to what was said by Justice Hayne in Moffatt and what was said by this Court in McGarry and other cases ‑ ‑ ‑

MR WALKER:   All i’s must be dotted and t’s crossed.

KIRBY J:   It has to be applied very scrupulously.

MR WALKER:   Yes, your Honour has my point.

GLEESON CJ:   And you are probably hoping that your client’s ultimate success will be better than Mr McGarry enjoyed a week or two ago.

MR WALKER:   Thank you, your Honour.  I am sure that will be of comfort.

GLEESON CJ:   Yes, Mr Smith.

KIRBY J:   We may not have seen the last of Mr McGarry.

MR SMITH:   If the Court pleases, if I could take you to Act No 15 of 1905, the Habitual Criminals Act.

GLEESON CJ:   Just a moment.

KIRBY J:   What is the history of these Acts?  I assume they must have come from an English model at that time.

MR SMITH:   There is an 1871 Act, an English Act, your Honour, called the Prevention of Crime Act, section 8, which deals with what we would call habitual criminals.  If I could just take you to that briefly ‑ ‑ ‑

GLEESON CJ:   I suppose they deal with a problem that only emerged with the end of capital punishment.

MR SMITH:   That is probably right.

KIRBY J:   It was full flight in 1871.

MR SMITH:   Yes, and it ‑ ‑ ‑

McHUGH J:   Was not that whole Act directed in part to the Irish problem?

MR SMITH:   It does not specifically say that, your Honour.  I think it is more looking at the types of cases your Honour was referring to earlier; safecrackers, burglars and all this sort of thing, multiple criminality.  Gaoling does not seem to stop them, they just keep doing it; it is their profession.  The Timpkins family, that sort of mode.

CALLINAN J:   A kind of final solution ‑ ‑ ‑

KIRBY J:   Would you give me a reference to that case?

MR SMITH:   Yes.  It is the 1871 Prevention of Crime ‑ ‑ ‑

KIRBY J:   I meant the Timpkins’ Case.

MR SMITH:   That is “Rumpole Rides Again”, I think, your Honour.

KIRBY J:   What is the 1871 Act? 

MR SMITH:   It is 1871 Chapter 112.  It is the Prevention of Crime Act and it is section 8.  It is a very long section, but the first paragraph says:

Where any person is convicted on indictment of a crime and a previous conviction of a crime is proved against him, the court, having cognizance of such indictment may, in addition to any other punishment which it may award to him, direct that he is to be subject to the supervision of the police for a period of seven years, or such less period as the court may direct, commencing immediately after the expiration of the sentence passed on him for the last of such crimes. 

Then there is a whole lot of people that are subject to the supervision of the police who are at large in Great Britain and Ireland.  They have to notify their place of residence.  It is almost like a bail condition. 

KIRBY J:   I think this went back in criminological theory to Beccaria and Maconochie’s theories that judges were not very competent to sentence and therefore, we would give it to the Executive Government so people could be supervised.

MR SMITH:   Yes, that may be so.

McHUGH J:   Conviction for an indictable offence, I think with one exception, carried the death penalty until well into the 19^th century, and then it was ameliorated by the transportation provisions.  They sent them off to the colonies.

MR SMITH:   That is right.

McHUGH J:   Or some of them, but ordinarily, judges did not have much discretion in sentencing except in relation to misdemeanours.

MR SMITH:   Yes.  Well then we come to section 10 of the Prevention of Crimes Act, 1908.

KIRBY J:   This is after the 1905 Act.

MR SMITH:   This is after our Act, and ‑ ‑ ‑

KIRBY J:   That is an English Act, is it?

MR SMITH:   Yes, it is 1908 Chapter 59 Prevention of Crimes Act, and it is Part II section 10 headed “DETENTION OF HABITUAL CRIMINALS”:

Where a person is convicted on indictment of a crime, committed after the passing of this Act, and subsequently the offender admits that he is or is found by the jury to be a habitual criminal, and the court passes a sentence of penal servitude, the court, if of opinion that by reason of his criminal habits and mode of life it is expedient for the protection of the public –

That word “expedient” is used in our legislation -

that the offender should be kept in detention for a lengthened period of years, may pass a further sentence ordering that on the determination of the sentence of penal servitude he be detained for such period not exceeding ten nor less than five years, as the court may determine, and such detention is herein‑after referred to as preventive detention, and a person on whom such a sentence is passed shall, whilst undergoing both the sentence of penal servitude and the sentence of preventive detention, be deemed for the purposes of the Forfeiture Act, 1870, and for all other purposes, to be a person convicted of felony.

There are various other conditions, such as:

since attaining the age of sixteen years he has at least three times previously . . . been convicted of a crime –

charged and various matters of that sort, so it has some similarity with the legislation we have here.  In 1948, the Criminal Justice Act ‑ ‑ ‑

KIRBY J:   Another English Act, is it?

MR SMITH:   Another English Act which was actually referred to in the second reading speech of the Attorney General on the Habitual Criminals Act 1957 as a basis for that new Act. It is section 21 of that Act, this is the Criminal Justice Act, 1948, Chapter 58.  Section 21 is headed “Powers relating to persistent offenders”.  Section 21(1) deals with people who are less than 21 in age, who have been:

convicted on indictment of an offence punishable with imprisonment for a term of two years or more; and

(b)      has been convicted on at least two previous occasions since he attained the age of seventeen of offences punishable on indictment with such a sentence,

then, if the court is satisfied that it is expedient with a view to his reformation and the prevention of crime that he should receive training of a corrective character for a substantial time, followed by a period of supervision if released before the expiration of his sentence, the court may pass, in lieu of any other sentence, a sentence of corrective training for such term of not less than two nor more than four years as the court may determine.

So they do not actually get a substantive sentence in that matter.  Subsection (2) is more relevant to this particular case:

Where a person who is not less than thirty years of age-

(a)      is convicted on indictment of an offence punishable with imprisonment for a term of two years or more; and

(b)      has been convicted on indictment on at least three previous occasions since he attained the age of seventeen of offences punishable on indictment with such a sentence, and was on at least two of those occasions sentences to Borstal training, imprisonment or corrective training;

then, if the court is satisfied that it is expedient for the protection of the public –

again, that expression “expedient for the protection of the public” –

that he should be detained in custody for a substantial time, followed by a period of supervision if released before the expiration of his sentence, the court may pass, in lieu of any other sentence, a sentence of preventive detention for such term of not less than five nor more than fourteen years as the court may determine.

It seems that that formula that we had in the 1957 Act, which I will come to, has been taken from that legislation.  Now, that is the historical background ‑ ‑ ‑

GLEESON CJ:   Just before you finish with that, what is the current UK legislation?

MR SMITH:   The current one is the Power of Criminal Courts Sentencing Act 2000 (UK), and I refer here to the decision of R (Giles) v Parole Board [2004] 1 AC 1 which deals with ‑ ‑ ‑

GLEESON CJ:   We referred to that in Fardon.

MR SMITH:   You did.  To a great extent, it deals with European human rights provisions and their effect on British law, matters of that sort.  In that case, his Honour, Lord Justice Kennedy in the Court of Appeal quoted from section – well, actually it deals with the 1991 Act.  The 1991 Act was called the Criminal Justice Act 1991 and it was section 2(2)(b).  This was re‑enacted in the 2000 Act.  It was amended in 1993 and it now reads in this Act:

(1)      This section applies where a court passes a custodial sentence other than one fixed by law. 

(2)      The custodial sentence shall be—

(a)      for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it; or –

and this, I submit, would apply here if this was in England –

(b)      where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court it is necessary to protect the public from serious harm from the offender. 

There was an earlier case of the Court of Appeal, R v R [2004] 1 WLR 490, dealing with an appeal for sentencing under the 1991 Act. The holding in that was that an order for an extended licence under section 86 of the Power of Criminal Courts Sentencing Act 2000, which could only be made as part of a custodial sentence, was preventive, not punitive.

Really, that is an aspect that we wish to bring before the Court, that the habitual criminals legislation is quite different.  The purpose of it is quite different from the purpose of the Sentencing Act (WA) section 98 and its effect is quite different. The Western Australian Act basically came out of section 662 of the Criminal Code (WA), which dealt with preventative detention for cases of serious violence. There was a section 661 of the Criminal Code also that dealt with habitual criminals, somewhat different to ours.  They have been repealed and this Act now ‑ ‑ ‑

KIRBY J:   What are the points of difference?  The most vivid is the indefinite sentence as distinct from a sentence for a term.

MR SMITH:   Yes, and the point is that in the Western Australian legislation, section 98, the judge has to, before he decides to embark on an indefinite sentence, decide - it is not case where he should suspend and it is not a case where he should be eligible for parole. Section 98(1), if I can take your Honours to that:

(1)      If a superior court -

(a)      sentences an offender for an indictable offence to a term of imprisonment;
(b)      does not suspend that imprisonment; and
(c)      does not make a parole eligibility order under Part 13 in respect of that term,

it may in addition to imposing the term of imprisonment for the offence (the “nominal sentence”), order the offender to be imprisoned indefinitely. 

Now, our legislation, the Habitual Criminals Act, and I have come back to that other particular provision I was going to take you to, allows a suspended sentence, in a sense for the imprisonment for the substantive offence.  There is no limitation.  It does not have to be a term of imprisonment, but it could be a suspended sentence, and also allows the ordinary provisions of the Sentencing Act, sections 44 to 54 dealing with sentencing for imprisonment including in section 44 the ordering of a non‑parole period ‑ ‑ ‑

GLEESON CJ:   What was it that produced the consequence in this case that the Court of Criminal Appeal had before it two appeals?

MR SMITH:   Two appeals.  Well, we submit it is the fact that there are two different aspects to the sentencing.  It is not the one sentencing as suggested in McGarry.  Now, I agree that McGarry has two appeals as well under the Western Australian Act. We would submit that there is no need for two, that once you can appeal against that sentence under section 98, if the nominal sentence and the indefinite imprisonment stand together, then one ground of appeal and one right to seek leave to appeal knocks that over.

GLEESON CJ:   How come we have two appeals before us?

MR SMITH:   Well, I think that is an error.

KIRBY J:   Given the limitation in the grounds of appeal allowed on the special leave it is only really one appeal, is it not?

MR SMITH:   Yes, that was only to do with the 5E appeal, as I understand it, and there was an error in the settling of the book somehow, that they did not pick up that the other appeal, the section 5(1) appeal ‑ ‑ ‑

KIRBY J:   Can we have some agreement as to which is the proper appeal before us?

MR SMITH:   I was told this before we came into Court, I will just get the details.  I think there has been some correspondence.

GLEESON CJ:   Well, if the parties are agreed between themselves that there should only be one appeal before this Court, then at some stage before argument concludes, and it does not really matter when, we would like the parties formally to inform us so that it can go onto the record as to which appeal is withdrawn and which is the appeal we have to make orders about. 

MR SMITH:   Thank you.

KIRBY J:   Could I just ask you a question about the Sentencing Act 1995 (WA).

MR SMITH:   Yes, your Honour. 

KIRBY J:   In section 98, relating to indefinite imprisonment, it says:

may in addition to imposing the term of imprisonment for the offence (the “nominal sentence”), order the offender to be imprisoned indefinitely.

So it does seem that in Western Australia there are two orders.  There is the order of imprisonment for the offence and the order that the offender be imprisoned indefinitely.  They are two steps, not one sentence.

MR SMITH:   They are two steps, but this Court has said in McGarry ‑ ‑ ‑

GLEESON CJ:   Paragraph 7 on page 126.

MR SMITH:  

An 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). 

We say that an habitual criminal order is separate in that, for example, in section 98(3) the provisions of section 6 are excluded. Section 6(1):

A sentence imposed on an offender must be commensurate with the seriousness of the offence. 

The proportionality.  They are not bound by that, whereas the sentence for the specific offences in this case – they were bound by the provisions of the Sentencing Act, which means that there had to be a proportionate sentence, the substantive sentence, and the principles of Veen apply to that aspect. They do not apply to section 98, Veen (No 2). They do not apply to the habitual criminals aspect of it. So that, we submit, is a significant difference in the nature of the processes in section 4(1) of the Habitual Criminals Act which is different from section 98. That, we submit, means that there is a justification for two appeals.

In this case, my friend’s submission largely turned on his Honour Mr Justice Sully being wrong not to reconsider the pronouncement.  But he only has to do that if the McGarry point is right, that if the substantive ‑ ‑ ‑

KIRBY J:   I wonder about that, Mr Smith, because he has to do it if that is what the Criminal Appeal Act requires him to do once error has been found in the court below.  He does not, as it were, telescope the process.  He first has to consider whether error is established, and, if there is, then he must exercise his powers as an appellate judge and substitute the sentence that appears to him to be correct.

MR SMITH:   And he has done that so far as the substantive offences are concerned.

KIRBY J:   But he did it with masks on.  He was looking at the sentence of Judge Freeman and the argument is that he did not, as it were, exercise his own discretion.  He surrendered the exercise of that discretion to Judge Freeman, because he had donned these limiting spectacles.

regard to two of the possibilities that would arise in the appeal to the District Court from the magistrate’s decision.  One of the possibilities is the conviction goes.

Now, my friend concedes that that would make the CCA’s role extremely rapid and easily performed but there is a connection. Why would not the same degree of connection apply bearing in mind that the section 4 function was to consider, in terms of reformation and protection, prevention of crime, and the substantial imprisonment that that is said to justify, why is not the same connection even more obvious between the sentence, which one can imagine disturbed by the District Court on appeal from the magistrate, and the further sentence under the Habitual Criminals Act before the Court of Criminal Appeal on appeal from another District Court judge?

In our submission, the connection is just as close, is just as integral, is conceptually still bound up, the procedures are, no doubt, awkward, but they are, of course, not impossible. The key is that section 6(2), by requiring concurrency, will apply upon the resentencing in the District Court on appeal from the Magistrate which then, of course, would predate and so you would then have, if there was not a disturbance of the Habitual Criminals Act order, a sentence being served, not concurrently with a sentence being served at the time of the pronouncement, but concurrently with another sentence altogether, a different sentence, a sentence which would be lower because the appeal had been upheld, a sentence which, therefore, on the only point of section 4, which is length of imprisonment – that is all it is about – on the very point, quantitative relation between the two, there would have been a destruction of the concurrency required by section 6(2).

It is for those reasons that the point raised by Justice McHugh, though it is fairly to be called the best point the respondent has on the interpretation matter, is a point which nonetheless does not avail.  May it please the Court.

GLEESON CJ:   Thank you, Mr Walker.

AT 12.39 PM THE MATTER WAS ADJOURNED