Tilley v The Queen

[1991] HCATrans 241

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al8 of 1991

B e t w e e n -

ROHAN MARK TILLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Tilley 1 3/9/91

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 3 SEPTEMBER 1991, AT 2.40 PM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MR A.J. CROCKER, for the

applicant in this case. (instructed by Ward &

Partners)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with MR P.J.L. ROFE,
for the respondent. (instructed by the Crown

Solicitor for South Australia)

MASON CJ:	Mr Tilmouth.
MR TILMOUTH:	May it please Your Honours, when this Court wrote its judgment in Reg v Hoare and Easton it
reaffirmed, for the purposes of sentencing
principles in South Australia, two very important principles. If I may summarize them without
reading from the judgment: the first was that the existence of a remission system taken alone could
never be a reason in itself for increasing a sentence which was appropriate, and the second
principle, which was a corollary of that in relation to remissions, was that the basic and fundamental principle of sentencing was that the
sentence to be imposed was always to be
proportionate to the gravity of the offence itself.

This Court, also in Hoare and Easton,

disapproved of remarks of the Court of Criminal

Appeal in South Australia in relation to the

remission system which existed and which were dealt

with in Hoare and Easton, and if I might take the

Court to a brief passage in Hoare and Easton, to

make the point, (1989) 167 CLR 348. At page 363

this Court said of that relevant Court of Criminal

Appeal judgment, Dube and Knowles, the following:

The judgment in Reg v Dube and Knowles

does not really seek to explain why a

direction to "have regard to" the operation of

a remissions system should be construed as

having the effect of requiring an increase of	up to fifty per cent in head sentences for	serious criminal offences in South Australia.
As has been seen, the basis of the remissions system is that the sentence imposed by a
sentencing judge should be reduced to the benefit of the prisoner by the period of any
remissions earned by good behaviour while in
cus~ody. To increase the sentence of
imprisonment in order effectively to negate
the benefit of such remissions is to frustrate or defeat, rather than "have regard to", the operation of that remissions system.

Tilley 2 3/9/91

And the Court then cited with approval a former

judgment of the Court of Criminal Appeal of Menz

and Royce. It then continued:

Nor does the judgment in Reg v Dube and

Knowles contain any reference to the basic

principle of sentencing law that a sentence of

imprisonment should never exceed what

represents appropriate or proportionate

punishment for the objective offence. There

is nothing ins 302 -

which was a Criminal Law Consolidation Act

provision -

which can properly been seen as a legislative

direction to a sentencing judge to disregard

so fundamental a principle and, in effect, to
impose a much harsher sentence than is
appropriate or proportionate to the crime in

order to negate any benefit to a prisoner

which may result from some administrative

officer exercising the discretionary power to

remit actual service of part of the sentence

imposed. To the contrary, the legislative

direction that regard be paid to possible

remissions indirectly assumes the continued

existence of the appropriate or proportionate

sentence upon which the operation of the

remissions system is predicated.

In that background, Your Honours, the section which

we seek to ventilate in this Court was passed by

the South Australian Parliament, in effect, as a

consequence of that decision of this Court, and

that was embodied, Your Honours, in Act No 47

of 1989, a copy of which is in Your Honours'

materials, tabbed No 6.

Your Honours will see that by subsection 3 of

that amending Act, section 12 of the Criminal Law

(Sentencing) Act was redesignated 12(1) and a
subsection (2) and (3) were added.	They are, for

convenience sake, Your Honours, dealt with together

on one page in the last document that Your Honours

have in those materials. They have simply been

retyped so Your Honours can have 12 as it stood

originally and in context with 12(2) and 12(3).

What happened, Your Honours, in the amendment,

was that.the original section 12 was left totally intact. It was not changed in any way whatsoever.

It was simply designated 12(1). 12(2) and 12(3)

were added. 12(2) provides as follows:

It is the intention of Parliament that

subsection (1) should be interpreted in

Tilley	3/9/91 accordance with the judgment of the Full Court
in The Queen v Dube and The Queen v Knowles -

Now, that is one limb.	The second limb is as
follows:

were not properly so inferred, those

and in so far as the principles of sentencing
purportedly inferred by the Full Court from

section 302 of the Criminal Law Consolidation

principles must be taken to be founded on this

subsection.

Now, if the Court pleases, in our respectful

submission, it is difficult to know exactly what

the second limb of subsection (2) does, but it does

appear, if we may put it this way, Your Honours, to

be stating that Parliament regards there as being

no material difference between section 302 as it

stood, when this Court interpreted it in Hoare and

Easton, and the current section 12(1), and it may

also appear to be saying that in so far as this

Court disapproved of Dube and Knowles, then the interpretation of Dube and Knowles should not be influenced by that disapproval. There may be other

interpretations but that may be what the second

limb appears to be doing.

Your Honours, our essential submission is

that, in so far as the new legislation is an

endeavour to overcome, in effect, the principles of

sentencing, which are binding on our courts in

Hoare and Easton, the amendments have been

ineffective for that purpose. We say that for

these reasons. Firstly, Your Honours, the most

important point is, the operative section 12(1),

remains intact. The same central words "must have

regard to" are still there, unamended in any way.

Secondly, in so far as section 12(2) purports

to incorporate, by reference as it were, the

judgment of the Court of Criminal Appeal in Dube

and Knowles, the following may be said: the word

"judgment" as it appears in the first limb is to be

contrasted with the words, "principles of

sentencing" in the second limb and it may be said,

as we submit it to be, that therefore there is

meant to be a difference between "judgment" and

"principles of sentencing". The most common legal

meaning of judgment, of course, is simply the

formal order of the court.

As the Court knows here, the Court of Criminal

Appeal in this appeal, Tilley, regarded as meaning

the whole reasons of the Court, but we make the point that not only is the word "judgment" more

Tilley 3/9/91

naturally read as the formal order of the court -

this Court's decision in Moller v Roy is an example

- but it stands in contrast to the words

"principles of sentencing".

The second thing, Your Honours, is that, as we

endeavoured to point out by reading that passage

from Hoare and Easton, there was nothing in Dube

and Knowles as to the principles of sentencing

themselves. All the Court of Criminal Appeal in

Dube and Knowles said was the amendments now mean

there will be increases in sentences of

imprisonment of up to 50 per cent. By contrast, of

course, there was nothing either in Dube and

Knowles negating in any way the basic or

fundamental principles of sentencing enunciated by

this Court - or reaffirmed, rather, by this Court -

in Hoare and Easton.

The other point to be made, Your Honours, is,

without going to Dube and Knowles, the ratio of

that case was simply that section 302, as it then

stood, was not retrospective. Both Dube and

Knowles were offenders who had offended before

those amendments took effect, and the ratio of the

case was that the amendments therefore did not

apply to them. The Court, it is acknowledged, did

sound a warning that sentences will increase in

future, but the ratio of the case is simply on the

question of retrospectivity.

In other words, what we are submitting to

Your Honours as the nub of the special leave point

here is that in so far as section 12(2) purports to

incorporate by reference the judgment of the Court

of Criminal Appeal in Dube and Knowles, there is

simply nothing in terms of Dube and Knowles which

can be regarded as a legislative direction by

reference to that judgment, doing away with the

fundamental principles of sentencing as they have

always stood, and were declared to stand in Hoare

and Easton.

The other point we make, as a corollary to

that as part of our special leave point, is that

the amendment says, "Well, overlook the position of
sentencing courts in South Australia in the

hierarchy of courts, and that the doctrine of

precedent binds them to apply the principles that

this Court affirmed in Hoare and Easton." Hoare

and Easton is, of course, final and conclusive, at

least inter parte section 73 of the Constitution,

but more than that, because the lower courts are

bound to apply the principles generally applicable

in Hoare and Easton, the courts now, in our
respectful submission, stand in an invidious

position. They are, on the one hand, obliged to

Tilley 3/9/91

have regard to the judgment of Dube and Knowles,

whatever it may mean. On the other hand they are

still bound to apply the general principles of

sentencing which this Court has so clearly
pronounced in Hoare and Easton.

It is, in our submission, that the contest or

the inconsistency, as it were, in a court's
applying the principles of sentencing in working
out which of the two gives way, that the special
leave point in this case resides.

Your Honours, without going to the appeal books, it is evident, in our submission, that this

case too is a suitable vehicle for the ventilation
of the special leave point as we have endeavoured

to define it. His Honour the sentencing judge

said, in terms, page 23, that he should fix a

longer sentence than he would otherwise because he

had to take remissions into account, and likewise

the Full Court, in turn, has said that was no error

of principle because it simply reverted to its

pronouncements in Dube and Knowles.	Your Honours,
the other point - - -

GAUDRON J:  Mr Tilmouth, it was clearly the intention of the

legislature to bring about that effect, was it not?

MR TILMOUTH:  It was, but the intent can only be as good as

the words which give effect to it, may it please

Your Honour, and the intent might have been attempted by an incorporation of Dube and Knowles

by reference to the judgment but, with respect, as

this Court pointed out, and as I have said, in

Hoare and Easton, there really were no principles

of sentencing in Dube and Knowles and there was

nothing to negate the general principles of

sentencing which this Court pronounced in Hoare and

Easton. In other words, the sentencing courts now

have two different principles which they must

apply: one by force of statute; one because the

doctrine of precedent binds them to apply Hoare and

Easton, which are really inconsistent with each

other, and that is, in our submission, a special

leave point.

DEANE J: But, no matter how unprincipled the approach in

Dube and Knowles may be, it is still a principle

that it lays down.

MR TILMOUTH: Well, with respect, all the principle we said

it lays down is that sentences will increase by up

to 50 per cent, but it said nothing to say that

Parliament had intended us to disregard those other basic principles and the courts are left, in our

submission, with two different things binding on

Tilley 6 3/9/91

them which the courts themselves have to endeavour

to reconcile. Put another way, if I may - - -

GAUDRON J: But that really is not quite correct, is it,

Mr Tilmouth? Hoare and Easton is only binding on

the law as it then stood.

MR TILMOUTH: That is true.

GAUDRON J: It is only authoritative to that extent.

MR TILMOUTH:  Yes, and the Full Court here said, of course,

"Well, what Parliament had endeavoured to do is

change the law for the future", and I accept that,

but nevertheless, if the Court pleases, this

Court's pronouncement in Hoare and Easton is still

there. Their general import has not been affected,

and the point we make is that even if, with

respect, it is a clumsy way of indicating incorporates the judgment in Dube and Knowles,

still cannot show a clear passage from that case

from which one can reason that the fundamental

principles I referred to are meant to be displaced

by the will of Parliament. My further answer,

therefore, to Your Honour Justice Gaudron is the

intention of Parliament is clear but it has not

managed to, in this amendment, give effect to it by

a substantive amendment. Indeed, it has left the

old operative section untouched.

Your Honours, in the appeal papers there is

also, as Your Honours will see, appeals to other

matters. I simply make the point that, in so far

as this Court left untouched in the King case,

whether there was any quantification to the
well-known words of peace, order and good

government, then our submission would be that the

fundamental principles of sentencing could be

regarded as rights deeply rooted in our democratic

system of government and common law, but our main

application is to the words of the legislation	appeal to this Court here on the special leave
itself which, of course, are matters central to the administration of sentencing principles in this State. If the Court please.

MASON CJ:  Thank you, Mr Tilmouth. The Court need not

trouble you, Mr Solicitor.

MR DOYLE: If the Court pleases.

Tilley	3/9/91
MASON CJ:	The Court is not persuaded that the arguments

that the applicant proposes to raise on the hearing

of an appeal would enjoy sufficient prospects of success to warrant the grant of special leave to

appeal. The application is therefore refused.

AT 2.56 PM THE MATTER WAS ADJOURNED SINE DIE

Tilley 3/9/91