Wynbyne v Marshall

[1998] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D174 of 1997

B e t w e e n -

MARGARET NALYIRRI WYNBYNE

Applicant

and

ADRIAN ARTHUR MARSHALL

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON THURSDAY, 21 MAY 1998, AT 3.23 AM

Copyright in the High Court of Australia

MR A.R. CASTAN, QC:   If it please the Court, I appear with my learned friend, MR P.D. McNAB, for the applicant.   (instructed by Parishs)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR M.J. CAREY, for the respondent.  (instructed by the Solicitor for the Northern Territory)

GAUDRON J:  Yes, Mr Castan.

MR CASTAN:   If the Court please, this application raises constitutional issues which are matters which, had they come before the Court differently, would arise in the original jurisdiction of the Court.  I mention that because, in terms of dealing with the general importance of the issue, it is important that the Court should be aware that there are many persons who are the subject of this mandatory sentencing legislation that has the effect that it is not a case where the matter will not otherwise, in any event, come before the Court.

GAUDRON J:   Well, that may be so, but - - -

MR CASTAN:   It may be so.  I think - - -

GAUDRON J:   But that is no reason to depart from the ordinary rules with respect to special leave applications, is it?

MR CASTAN:   No, but it is relevant, perhaps, only on the question of general importance and convenience of a particular case as an appropriate vehicle, and it is for that reason that I mention it as a preliminary matter.

GAUDRON J:   Yes.

MR CASTAN:   Your Honours, in substance, the primary issue that is raised is the question of whether a mandatory sentencing regime can amount to an inference with the exercise of judicial power where that sentencing regime is laid down by the legislature.

HAYNE J:   Does your contention amount to a proposition that a legislature may not, one, fix a minimum penalty for an offence; two, may not, for example, as it did until 10 years or so ago, fix life as the mandatory punishment for murder, may not, as historically was the case, fix capital punishment as the punishment for all felony?

MR CASTAN:   No, the proposition we put does not go to say that legislature can never impose a mandatory sentence, or impose mandatory minimums, or impose the kind of penalties with which we are so familiar in capital cases and the like.  Rather, the proposition is put that laws imposing mandatory sentences or, for that matter, constraining sentencing discretions, may interfere with the exercise of judicial power where, by their nature, by the particular kind of regime that is imposed, they require a court to proceed in a manner which tends to bring the administration of justice into disrepute, or which does not ensure equality before the law, or which otherwise impinges on the fundamental principles that this Court, in recent cases, has laid down as the basic elements of the exercise of judicial power.  Now, it does not follow that there can never be a mandatory sentencing regime, but nor does it follow, as we would - - -

GAUDRON J:   How do you make this case with respect to a Territory court, for example?  It is one thing to bring in a Kable point, if you like, of courts which the Constitution acknowledges will exercise the judicial power of the Commonwealth. I mean, there may be a very good question as to how it is, or whether, at all, Territory courts could exercise the judicial power of the Commonwealth, but that is somewhat different from the question you advance.

MR CASTAN:   Well, inevitably, if the first proposition that I put is accepted as a legitimate matter to be raised, that is to say, that there may be a mandatory sentencing regime or, for that matter, a discretionary sentencing regime which operates in such an inappropriate way that it does interfere with judicial power, then, of course, one gets to the question of whether or not Chapter III applies to Territory courts.  That question, of course, is now the subject of, might I call it renewed controversy, or renewed consideration in this Court, and the judgments in Kruger, of course, include a range of views, and I understand and have been informed that the matter has been raised again in the context of an issue applying to the Family Court in a case GPAO, as we understand it, which raises the matter.  There, of course, applying to the question of a Federal Court sitting in relation to a Territory matter. 

That issue, of course, as we would respectfully contend, is alive.  We would also concede that, in the context of the line of decisions following from Bernasconi and Spratt v Hermes, of course, it would be said that the Territory courts are not subject to Chapter III principles and we would need to confront that.  We do confront it, and we say that they are, and we seek to raise that issue also, as well as raising the issue of whether or not a mandatory sentencing regime may be so inappropriate as to interfere with judicial power.

I should say in response to your Honour’s question about how it is raised, the same question also arises, even apart from what I will call the  Bernasconi and Spratt v Hermes question, by reason of the operation of the Self‑Government Act, which itself constrains the categories of laws which may be made by reference to executive authority, so that there is a category of laws with which each law passed by the Territory Parliament must comply and one of those categories and the one that, in our respectful submission, is the only one that would be relevant, is what is termed the maintenance of law and order and the administration of justice.  Now, given that the law must be a law with respect to, in this case, maintenance of law and order and the administration of justice, what is in substance the same question, what we will call the Chapter III question, and interference with judicial power question is raised as a matter of substance, a head of power issue, under the Self‑Government Act.  So, it comes in, so to speak, in a different way.

The third way in which it comes in is by reason of the creation of the Supreme Court of the Northern Territory, which is created by the provisions of the Judiciary Act, section 67C.  The Judiciary Act confers jurisdiction on the Supreme Court of the Northern Territory.  Now, we have a situation in which the court itself is a creature of Commonwealth statute, so that, whether or not one applies Chapter III principles to it, there is a question of conflict between the creation of the court and such implications as may be drawn from the law of the Parliament - the provisions of the law of the Parliament, namely the Judiciary Act, and whether they carry with them, in any event, implications which, in effect, are, in substance, the principles of the exercise of judicial power that had been the subject of consideration in this Court.

So there are, so to speak, three avenues by which, what is in substance, although coming at it from different points of view, substance the same question of the interference with judicial power question.  To come back to it we put it that the principle that operates is that while it would be said, and has been said, in cases such as Palling v Corfield, that there can be, or it is not necessarily interference with judicial power to have a mandatory sentencing regime, in our respectful submission, the proposition as put that way goes too wide, in the same way as it would be said against me, it would be too wide to say that a mandatory sentencing regime always necessarily interferes with the exercise of judicial power.  To say that a mandatory sentencing regime could never interfere with the exercise of judicial power, no matter how arbitrary, no matter how manifestly excessive, no matter to what extent it brought the administration of justice into disrepute, no matter to what extent it had an impact of not insuring equality according to law - - -

GAUDRON J:   Well, I think you had better then address the proposition that it does bring the system of justice into disrepute.  It is not sufficient to put these propositions in the abstract.

MR CASTAN:   No, and we say, in this particular case, this is the classic case, the case which - and we say that this question of the operation of a regime which can work in that way is going to inevitably and does here necessarily operate in its worst manifestations, if I can use that expression, in relation to judicial power, where it operates at the lowest end of the scale of punishments or the scale of offences.  In other words, while it is relatively easy to work out or perhaps to say it is a larger area of room for operation for the Parliament to lay down mandatory sentencing in relation to all sorts of serious offences, when one comes to the lower standard of the scale of offences, when one comes to those offences which are ordinarily - would usually be dealt with or being either dismissed as trivial under ordinary, what might be described as the conventionally accepted or commonly applied sentencing principles, either dismissed as trivial or dealt with - - -

GAUDRON J:   It was open to the Magistrate to dismiss this, was it not?

MR CASTAN:   No, it was not.  It was not, your Honour.  The very nature ‑ ‑ ‑

GAUDRON J:   He was required to proceed to conviction.

MR CASTAN:   Required to proceed conviction and required to proceed to sentence for 14 days.  The difficulty - the reason why we are here and the reason why the attack is made on this legislation is that it does not provide, it overrides the question of the possibility of dismissal for triviality or any other - I think your Honours have just dealt with in the previous matter the question of the necessity to impose the sentence, and the sentence applies regardless of the circumstances of the offence, regardless of the circumstances of the offender and regardless of any other factors.  So it ‑ ‑ ‑

HAYNE J:   Leave aside then whatever might be said about the wisdom or social utility of such a rule, what is it that brings it into conflict with the elements of judicial power?

MR CASTAN:   Because ultimately it undermines confidence in the courts.  The reason for that is that inevitably we will get to a situation - what happens in a situation in which there is mandatory imprisonment in all cases for all offences, however minor or trivial, is that the sentencing discretion inevitably passes back through to the police, to the authorities.  It is inevitable that that will happen, that what will happen is that you will get trivial offences.  As it is recounted, the dispute between neighbours who have a fencing dispute and something is done between neighbours who - one neighbour interferes with a section of the fence that is the neighbours section of a fence, trivial matters that should not be dealt with by the system imposing sentences of imprisonment.  If dealt with in this way ‑ ‑ ‑

HAYNE J:   What is it about the court applying the law prescribed by Parliament that brings the court into disrepute?

MR CASTAN:   The court is brought into disrepute if it is required to impose sentences that are inappropriate in those sorts of settings.  These are the settings of day-to-day dealings of the courts, the Magistrates Courts, and if the courts are turned into an instrument of what is in substance imposing penalties that are so excessive, as is put in one of the Canadian cases, admittedly dealing with the charter question about cruel and unusual punishment, but it gives a guideline so excessive as to outrage standards of decency. 

There will be cases where if a first defender has committed a minor offence, as this case, an offender who is a first offender with no record, a 22‑year old woman with otherwise an unblemished record and no history of anything other than being in an employment situation and who has never committed an offence before and never been under notice before and who is not, as it transpires, although guilty of the offence, is not the taker.  We are talking about a $2.50 can of beer, and is not the taker of the can of beer; she is a co-offender with another person, her brother, who takes the can of beer.

Now, those are the sorts of the circumstance - when courts impose imprisonment on persons in those circumstances the court is made the instrument of oppressive punishment, and the oppressive punishment brings the court into disrepute.  In our respectful submission there is a line and this legislation crosses that line and as we put it, the tendency to undermine the confidence in the administration of justice will inevitably be greatest where the regime is in its substance manifestly excessive at the lowest end, at the day-to-day end of the cutting face, so to speak, of the interface of the legal system and day-to-day conduct.  That is what has occurred here.

If a person plasters a billboard or an advertisement for a band on a lamppost or on a wall, defacing the wall, and thereby committing a property offence is something that might be dealt with, perhaps, in the ordinary context as a breach of a council regulation, but amounts to a property offence because they are defacing property.

There is a situation in which, in our respectful submission, the law, if it imposes the requirement on the judicial arm to imprison that person for 14 days for that offence and for a second offence, if there has been two such bill postings for 90 days, and for a third offence for a year, then the judiciary is being made the instrument of punishments which are manifestly excessive and that tends to bring the judicial arm into disrepute.

It also will, in certain circumstances, inevitably result in an interference with equality before the law and that is because there will develop the tendency for certain kinds of offences, committed by certain kinds of people, not to be prosecuted.  There will be the tendency, and it is of course recorded 200 years ago and up until the time of the Benthamite reforms, as we know, of juries finding that a particular property was not of the value of the Crown so as to avoid the imposition of a mandatory death sentence or mandatory transportation.  A law which provides for the transportation or hanging for the theft of a loaf of bread is a law which brings the judiciary into disrepute.  And the courts in the late 18th century and early 19th century were brought into disrepute until those reforms, and for the legislature now to enact such a law is to cross that boundary.  We would respectfully submit the question of whether that boundary has been crossed in relation to this law is a live and real question and should be undertaken by this Court.

There is also, I should make reference briefly to, a section of the Commonwealth Crimes Act, just in relation to the sentencing for Commonwealth offences requires that a person not be sentenced to imprisonment unless they have been - the section is 17B ‑ ‑ ‑

HAYNE J:   No other sentence appropriate, 17A or 17B?

MR CASTAN:   It is 17B, and 17B provides that:

If:

(a)  a person is convicted of.....section 17B offence relating to property, money or both, whose total value is not more than $2,000;  and

(b)  the person has not previously been sentenced to imprisonment for any federal, State or Territory offence.

Now, there will inevitably, if this law stands, be a series of persons who have been convicted, sentenced to imprisonment for another, in this case, as defined, State offence, because the Northern Territory is defined as a State for the purpose of this legislation, so that the barrier to imposing a sentence of imprisonment has been, so to speak, significantly lowered in relation to subsequent federal offences as a result of this Territory law.  Now, in our

respectful submission, what is contemplated by the Commonwealth Crimes Act is a set of regimes which operate within the framework of what we will call, non-excessive and - a range of penalties which are appropriate and do not cross the boundary that we have attempted to articulate.

In other words the federal legislation contemplates a rational system of State imprisonment laws, not what, we would respectfully submit, is an irrational one of a kind we have endeavoured to describe.  For those reasons, it is respectfully submitted that special leave should be granted.

GAUDRON J:   Thank you, Mr Castan.  Yes, we need not trouble you, Mr Jackson. 

The Court is of the view that the proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave.  Accordingly, special leave is refused.  You do not seek costs in this matter I trust?

MR JACKSON:   Well, we did, your Honour.

GAUDRON J:   Well, it is a criminal matter, Mr Jackson.  I mean, that is heaping insult on injury, is it not?

MR JACKSON:   Your Honour, what I was going to say about it was that your Honours will see from paragraph 39 of our submission that we did.  I do not know if there is anything further I could say in support of it.

GAUDRON J:   No, there will be no order as to costs.

AT 3.42 PM THE MATTER WAS CONCLUDED