Wangsaimas v The Queen D3/1997 [1997] HCATrans 241 (13 August 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D1 of 1997

B e t w e e n -

SOMPHON LEE VANIT

Appellant

and

THE QUEEN

Respondent

Office of the Registry

Darwin No D2 of 1997

B e t w e e n -

PONCHAI TANSAKUN

Appellant

and

THE QUEEN

Respondent

Office of the Registry

Darwin No D3 of 1997

B e t w e e n -

SANAN WANGSAIMAS

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 AUGUST 1997, AT 10.19 AM

Copyright in the High Court of Australia

________________________

MR D. GRACE, QC: If the Court pleases, I appear with MS R.Y. SORMANN, on behalf of the appellants. (instructed by Waters James McCormack and instructed by the Northern Territory Legal Aid Commission)

MR T.A. GAME, SC: If the Court pleases, I appear for the respondents with my learned friend, MR P.J. McKEIVER. (instructed by the Australian Government Solicitor)

BRENNAN CJ: Mr Grace.

MR GRACE: Thank you, your Honour. The primary submission for the appellants is that section 16G of the Commonwealth Crimes Act 1989 applies to federal life sentences, and that in the circumstances of this case the Northern Territory Court of Criminal Appeal was in error in, firstly, holding that that section did not apply and, secondly, in not applying it in the circumstances of the cases of these appellants.

Inherent in that proposition or that submission is the submission that the New South Wales Court of Criminal Appeal, in the cases of Yook and Sung and in Ng, was not in error and ought to have been followed by the Northern Territory court.

When the appellants were sentenced on 18 August 1995, the sentences of imprisonment, with the exception of life sentences which to that date in the Territory had only been imposed for murder, were subject to remission or reduction.

The same situation applied when the matter was argued before the Northern Territory Court of Criminal Appeal. However, on 1 July 1996 the Northern Territory Sentencing Act of 1995 came into operation and, except for some exceptions which are not relevant to this appeal, the system of remissions or reductions of sentence in the Northern Territory ceased to exist. The Court of Criminal Appeal judgment in this matter was delivered on 31 July 1996. On that date Northern Territory sentences for all intents and purposes, and certainly for the purposes of section 16G, were not sentences that were subject to remission or reduction.

The Northern Territory Court of Criminal Appeal, in finding error by the sentencing judge and in granting the application for leave to appeal against sentence in respect of each of these appellants and allowing their appeals, thereafter exercised this discretion pursuant to section 411(4) of the Northern Territory Criminal Code Act and resentenced the appellants on 31 July 1996.

At the time that federal Parliament passed the relevant piece of legislation amending the Commonwealth Crimes Act, Parliament must be taken to have known, in our submission, that there were many crimes under federal law that attracted maximum penalties of life imprisonment. In paragraph 2.17 of the appellants' submissions a list of those crimes is set out. One can see at once that there are quite a number not only under the Commonwealth Crimes Act but also under the Customs Act, under the Crimes (Trafficking in Narcotic Drugs and Psychotropic Substances) Act, the Crimes (Aviation) Act and the Crimes (Foreign Incursions and Recruitment) Act.

It is submitted that section 16G, by its language, covers the field and Parliament must be taken to have known that it would apply to life sentences notwithstanding difficulties which may not have been considered at the time in relation to calculation. Furthermore, and of significance in the appellant's submission, is that Parliament has had the opportunity for seven or eight years now, at least since the discussion of this issue and the problems that it enlivens in Paull's Case in 1990 in New South Wales, Parliament has certainly had the knowledge and the opportunity to amend the legislation but has failed to have done so.

KIRBY J: Is not that mythology? I think Sir Owen Dixon in one case said that that makes assumptions about the way Parliament operates that really is a little unreal. I know courts say those sorts of things but it seems a bit of a mythology. Parliament has got a lot on its mind.

MR GRACE: Yes, but your Honour would be well aware of the cases that related to, and the differences of opinion throughout Australia at the time in the early nineties, about whether foreign nationals ought to be recipients of orders for parole, that is, ought they receive non-parole periods. There was a difference of opinion between Western Australia and at least New South Wales and perhaps also Victoria at the time.

What occurred in relation to that was eventually the matter came before this Court in the case of Shrestha and this Court, by a 3:2 majority, held that notwithstanding the fact that a prisoner was a foreign national he ought to receive an order granting parole or an order for a non-parole period. That decision of the High Court resulted in an amendment to this division of the Crimes Act so that we now have a section in the Crimes Act which specifically provides for the situation of a foreign national and allows for courts, notwithstanding that situation of an individual, to make a non-parole order.

KIRBY J: But did the majority reasoning in that case suggests that one ground for such reasoning was that Parliament had lots of opportunities to change the Act and have not.

MR GRACE: No, I believe that was not one of the grounds. But I raise that decision merely to comment upon your Honour's proposition to me and give your Honour the example of an amendment to this division of the Crimes Act which was responsive to problems that courts had encountered and one which the High Court, itself, had dealt with prior to the amendment to the legislation.

In the Commonwealth Crimes Act there is a definition of "federal sentence". It is contained in subsection 16(1). "Federal sentence" is defined as meaning "a sentence imposed for a federal offence". There is no definition of "federal life sentence" contained within the section 16(1) definitional section. There are some sections of the Act which draw a distinction between "federal sentence" and "federal life sentence", or "life sentence". There are three separate phrases: "federal sentence", "federal life sentence" or "life sentence". By way of example, could I refer your Honours to section 19AB(1)(b) which differentiates between "federal life sentence or a federal sentence"; 19AF(2) which refers to "life sentence"; 19AL(2) which refers to "federal life sentence or a federal sentence"; 19AM which refers to "life sentence"; 19AP(6) which refers to "federal life sentence"; 19AR(1)(b) which refers to "life imprisonment"; 19AR(2)(d) which refers to "life imprisonment", and 19AR(3)(d) which refers to "life sentence".

There are various reasons why there are distinctions drawn between the term "federal sentence" or "sentence" and "life sentence" in each of those particular subsections, and those reasons are set out in paragraph 2.3 of the appellants' outline of submissions. However, there are also several sections in the Act which refer to "federal sentence" but do not specifically refer to federal life sentences or life sentences but which, logically, must apply to a federal life sentence. For instance, the definition of "federal sentence" in section 16(1), 16F, which imposes an obligation upon a court to explain a sentence; 19(1), in relation to cumulation and concurrency, 19AG, 19AJ, 19AK, 19AS, and 19AT(1).

KIRBY J: Is there any case that you know of that explains the history of life sentences in Australia, how they came into our law and how the distinction was made between, say, life sentence and sentence for the rest of the person's natural life? Is there any case that you know of that has gone into this?

MR GRACE: No, I am not aware of any such case.

KIRBY J: Is there any text that explains the history? Because, on the face of it, a life sentence means for life. But there are whole books and papers written on the meaning of life, and I would like to know how that comes to be about 25 years or so. I mean, how did that happen?

MR GRACE: Well, the text on sentencing in Victoria - Fox and Freiberg - touches on it, but there is no in depth analysis of it and I am not aware, certainly, of any case authority in Australia that - - -

KIRBY J: If you can find anything on that, I would be appreciative.

MR GRACE: Yes, certainly.

McHUGH J: Were there any life sentences while the death penalty was extant? Were not life sentences the result of commutation of death sentences by the executive government?

MR GRACE: Traditionally, yes, but not recently.

McHUGH J: No. With the abolition of the death sentence, the legislature began to substitute life sentences.

MR GRACE: Yes, that is true. But moreover, in the Commonwealth sphere, the imposition by legislatures of life sentences have seemed to be more a reaction to the gravamen of a particular crime, or as new crimes occur which require legislative attention, and to meet the - perhaps the public clamour for appropriate retribution for serious crimes.

BRENNAN CJ: Was there any maximum sentence of imprisonment for a felony?

MR GRACE: No, your Honour.

McHUGH J: Well, it was death.

MR GRACE: Except for death, there was no determinate maximum. Death was the traditional - - -

BRENNAN CJ: Or life.

MR GRACE: Yes, or life.

McHUGH J: I think only by statute, was it?

KIRBY J: This may be explored a little in Dugan's Case, the history of the punishment of felons.

MR GRACE: But certainly the life imprisonment, as a statutory penalty, is a relatively new phenomenon in Commonwealth legislation. The traditional penalties for treason and piracy were death; the statute having been amended perhaps as recently as 30 years ago, I believe, to change the penalties to life.

KIRBY J: The question is not entirely irrelevant, because Parliament has used the word "life", and our purpose here is to examine and find the purpose of Parliament and, on the face of it, the use of the word "life" means what it says and does not contemplate, of its nature and character and terms, that you can reduce it. But it may be that the history and the way that history has developed and that Parliament knows the history suggests otherwise, but I think we have to have some background that helps us to understand why "life" does not mean "life".

MR GRACE: There is a partial answer in the Act, itself. Perhaps I could take your Honours to that now, although it is somewhat out of the order that I proposed to argue the matter, but it is relevant to this question. Could I take your Honours to section 19AZC. Section 19AZC(1)(b) provides that where a parole order is made or a licence is granted in relation to a person, and during that period of parole or licence there is no revocation of either, it means, in effect, that the imprisonment is discharged. So, to give your Honours a practical example, let us take this case where you have two of the prisoners who received life imprisonment with a non-parole period ordered of 25 years. If pursuant to section 19AP one or both was released on licence at the end of 25 years - - -

KIRBY J: That is pursuant to the Crown's prerogative of mercy, is it?

MR GRACE: No.

KIRBY J: Is that pursuant to a provision in the Act?

MR GRACE: A non-parole period. Each of these appellants received, upon resentencing in the Court of Criminal Appeal, orders in their favour that they would be considered for release on parole at the expiry - in two of the cases of 25 years, and in one of the cases, 22 years.

KIRBY J: I saw that and I wondered how that can be done by a court in apparent diminution of the Crown's absolute or complete right to release a life prisoner when it wants to.

MR GRACE: Because the Act in terms allows it to occur. Section 19AP is the relevant section which provides that:

Where a person is serving a federal sentence (whether or not a non-parole period has been fixed.....the Attorney-General may grant a licence under this subsection for the person to be released from prison.

That is in subsection (1). Pursuant to subsection (6) - and this is important for the purposes of this discussion:

A licence in relation to a person:

(a) if the person is subject to a federal life sentence - must specify the day on which the licence period ends, being a day not earlier than 5 years after the person is released on licence -

Let us assume for the purpose of the discussion that the Attorney was to grant a licence to these appellants and that the licence period was five years. If each appellant did not breach the conditions of the licence, at the conclusion of that five years the remainder of the life sentence would be remitted. So, in the case of two of the appellants, their sentence would in effect be remitted by effect of the legislation to 30 years and in respect of one of them, Wangasaimas, the sentence would be remitted to 27 years. So that is a practical way in which the Act could operate to provide a remission system within the Acts system or scheme.

That particular provision seems to fly in the face of "life" meaning the term of one's natural life where there is either a non-parole period ordered and parole or licence granted or where there is no non-parole period ordered but a licence is granted. So it does not rely upon the royal prerogative to remit a sentence. It is a statutory provision which in effect makes the sentence effectively remitted for that period.

KIRBY J: Where is the provision in the Act that preserves the royal prerogative of mercy here? Is there such a provision?

MR GRACE: Yes.

KIRBY J: I thought I saw that there was.

MR GRACE: Yes, there is.

KIRBY J: Is it pursuant to that that the licence is granted or is that a statutory - - -

MR GRACE: No, that is a statutory scheme.

KIRBY J: That is the one that you referred to.

MR GRACE: Yes, that is a statutory scheme. Certainly, in this division - - -

KIRBY J: Do not worry, it will turn up in due course.

MR GRACE: Yes.

KIRBY J: I think it is referred to in the Court of Appeal's decision.

MR GRACE: Yes. Certainly the royal prerogative is preserved. I do not know if that gives your Honour an answer, albeit perhaps partially, to the problem of what is meant by "life" under the Commonwealth Crimes Act, but it at least gives an indication that Parliament intended that there be some finite period if a licence was granted for the release of a prisoner, whether it be at the conclusion of the non-parole period or at some other time.

KIRBY J: I will not extend this, but I suppose the alternative theory of the statute is that the section does not apply to reduce but that there is always the power, under the Act, of licence release or under the royal prerogative to reduce. That is the alternative theory on offer.

MR GRACE: Yes. The respondent has prepared for the benefit of the Court - and I have seen it, and have no objection to it - a table of those States and Territories within Australia that have remissions or reductions of sentences. It is clear that, except for some exceptions which have sunset clauses, in the Northern Territory and Victoria, those jurisdictions have no system of remissions or reductions at the present time, nor do New South Wales, South Australia or the ACT. There are remissions, however, in Tasmania, Western Australia and Queensland, and the relevant provisions are set out at paragraph 2.5 of the outline.

KIRBY J: But not in life sentences.

MR GRACE: Not in life sentences, although, can I make this point: there does not appear, at least in recent times, any occasion upon which a State or Territory court has imposed a life sentence for anything other than murder, save for these few cases that have arisen under the Customs Act.

BRENNAN CJ: What do you draw out from that?

MR GRACE: That the executives, if not the Parliaments in those jurisdictions, have never had occasion to consider whether remissions or, if so what remissions, ought to apply to persons so sentenced. So that although, to take the Northern Territory for example, there are a wide range of offences in the Criminal Code Act which attract a potential maximum of life imprisonment including rape, manslaughter, armed robbery and the like, not one person has ever been so sentenced.

There was a determination made pursuant to previous Northern Territory legislation by the relevant minister that one third remissions would apply to all sentences imposed for Territory offences in the Territory. That was a determination made in 1981 and a copy of that has been provided to your Honours by the respondents. But there has never been an occasion to consider whether that determination applies to life prisoners or whether it could or whether there ought to be a separate determination made in respect of life prisoners.

The point I was seeking to make was that it is a novel situation in at least recent times to have sentences of life imprisonment imposed for crimes other than murder in Australia.

McHUGH J: I do not know how long you are going to go back but in my time at the Bar in New South Wales there were plenty of sentences of life. They were life for manslaughter.

KIRBY J: Rape.

McHUGH J: Rape in particular. In fact, there is currently a man serving a life sentence for - no, for murder but rape was involved. He is probably still, although he has been later sentenced to life for murder, he was sentenced by Justice Clancy to life for rape.

MR GRACE: I was not aware of that situation, but it appears to be a relatively rare occurrence and certainly, my researches indicate that in perhaps the last decade, if not longer, there have not been life sentences imposed for anything other than murder in Australia other than these Customs Act cases.

McHUGH J: Well, Simmonds and Newcombe, the famous escapees, got life for manslaughter. They killed a warder. The jury convicted them of manslaughter and not murder. Nevertheless, Justice McClemens sentenced them to life imprisonment.

MR GRACE: I am not aware of that case, and when it was, your Honour.

McHUGH J: It was in the 1960s.

KIRBY J: Is there a provision in the Customs Act for mandatory life sentences?

MR GRACE: No.

KIRBY J: There is not? You know of no such provision in Australia?

MR GRACE: No, I do not.

BRENNAN CJ: What, of mandatory life sentences?

MR GRACE: Only for murder.

BRENNAN CJ: I see.

KIRBY J: I thought that Parliament had introduced provisions for mandatory life sentences in certain drug importation offences, but that is a mistake.

MR GRACE: The maximum penalty is life.

KIRBY J: Yes.

MR GRACE: But there is nowhere, as far as I am aware, that expresses "mandatory life" for commercial quantities. Indeed, in the cases that - - -

BRENNAN CJ: What, no State laws that do it?

MR GRACE: No, your Honour, not that I am aware of.

BRENNAN CJ: How far have your researches taken you?

MR GRACE: All States, your Honour, and I am not aware of any mandatory life sentences, except for murder and treason.

McHUGH J: Piracy.

MR GRACE: Piracy.

BRENNAN CJ: I thought it was a mandatory life sentence in Queensland for some drugs. I may be wrong, of course.

MR GRACE: Certainly life imprisonment is the penalty expressed - - -

BRENNAN CJ: No, you are talking about mandatory - - -

MR GRACE: Mandatory, yes. I am not aware of any "mandatory lifes" anywhere in Australia. The interpretation of section 16G has been the subject of comment in a number of the cases which are referred to in the outline of submissions.

BRENNAN CJ: This case comes down to a question of the construction of 16G, does it not?

MR GRACE: Yes, it does.

BRENNAN CJ: Are you going to endeavour to construe it for us, or are you just going to take us to cases?

MR GRACE: Our submission is that the language is intractable. It is drafted in uncompromising terms. There are clear distinctions made in other sections of the Act which make a distinction between federal life sentences and federal sentences. The definition of "federal sentence" must include a federal life sentence, as is set out in section 16(1), and there is no reason to look behind the words to, in any way, limit the words as to not to apply to life sentences.

McHUGH J: But why do you have to look behind them? Why can you not just look at the section at all itself? It talks about:

the court imposing the sentence must take that fact into account in determining the length of the sentence -

That is hardly applicable to a life sentence, is it?

BRENNAN CJ: How do you adjust a sentence accordingly if, having taken it into account, you think it right to impose a life sentence?

MR GRACE: You adopt the procedure that the New South Wales Court of Criminal Appeal has adopted in a succession of cases, starting with Paull and then through Ng, and then to Yook & Sung.

KIRBY J: But is that adjustment or is that alteration of a life sentence, because - - -

MR GRACE: I am not sure of the distinction.

KIRBY J: The distinction is adjust means you reduce 20 years to 15 years, but adjust means you vary something which is variable, whereas the alternative theory is that life is, of its nature, not adjustable.

McHUGH J: What you are seeking to do, and what the New South Wales courts do, is to substitute another sentence. They do not adjust a sentence, they substitute a different sentence. You cannot adjust a life sentence.

MR GRACE: Then they must reduce it, that is what they are doing. They are, in effect, reducing the life sentence to take into account the absence of remissions or reductions.

McHUGH J: You cannot reduce a life sentence, you substitute another sentence. You are sentenced to life imprisonment, you are sentenced to life imprisonment. If you then say you are sentenced to 20 years in prison, you have substituted another sentence. It is not as if you are saying, well look, if she is sentenced to 20 years, I reduce it to 16.

MR GRACE: The language is clear.

BRENNAN CJ: Which way?

MR GRACE: We say, our way. We say our way which, I suppose, begs the question.

BRENNAN CJ: You may be right, but it is a question of just looking at section 16G, is it not?

MR GRACE: Yes, and the heading.

BRENNAN CJ: Is there anything to be gained from looking anywhere else?

MR GRACE: Only to refer your Honours to the way in which the courts have grappled with the problem.

BRENNAN CJ: That is the New South Wales cases?

MR GRACE: The New South Wales cases, and to see or determine the practical way in which the problem can be overcome.

GUMMOW J: You have to say that the phrase a "federal sentence" means, or includes, is of such width as to include a "federal life sentence". That gives colour to the phrase "must adjust" to change what would otherwise be the prima facie meaning of adjust which is a prima facie meaning that would not help you.

MR GRACE: Yes.

GAUDRON J: That has the consequence, does it not, that if there are no remissions there can never be a life sentence. That is the logic of your - - -

MR GRACE: Yes.

GAUDRON J: So that by 16G there was an implied repeal of the provisions effecting a life sentence in those States and Territories where there is no remission.

MR GRACE: That is the practical effect. There can never be a federal life sentence.

GAUDRON J: It is not simply a practical effect; it must be an implied repeal.

MR GRACE: Yes.

McHUGH J: And would introduce a disparity between federal and State offenders subject to life sentences.

MR GRACE: There are no State offenders subject to life sentences for comparable crimes to these appellants. There are State offenders sentenced to life sentences for murder or perhaps other crimes at the present time in Australia.

KIRBY J: None of the State drug laws introduced have life sentences; none of them?

MR GRACE: Queensland does, but it is not mandatory life. I am not aware of anyone in Queensland having been sentenced to life.

KIRBY J: But it could happen?

MR GRACE: It could happen.

KIRBY J: In Queensland only, you say?

MR GRACE: Yes, but in Queensland there is discussion at the present time, I believe, which relates to what the meaning of "life" is and there is some suggestion that persons sentenced to life imprisonment at least for murder or under State laws in Queensland would be subject to release on parole or licence at the conclusion of 15 years, but that does not have the force of legislation at the present time. In one of these cases - I am not sure which one - that I was going to refer the Court to, there is a discussion of the length of time that persons sentenced to life actually have served in New South Wales over a period. I think that was one of the decisions your Honour may have been involved in. Perhaps it was Paull's Case.

KIRBY J: Which one?

MR GRACE: I am sorry, it is in fact in Yook and Sung, (1995) 84 A Crim R 432, Chief Justice Gleeson of the New South Wales Court of Criminal Appeal. At page 436, when dealing with the question of life expectancy in the section 16G adjustment, his Honour says this, after referring to Justice Simpson's reasoning in the trial court, at the top of the page:

There are a number of observations to be made about that process of reasoning. I regret that I am quite unable to agree with an approach to the application of s 16G to indeterminate life sentences which begins with a calculation in broad terms of the life expectancy of the prisoner involved, and then applies what was described as "the remission factor" to the figure thus arrived at. It is only necessary to reflect briefly upon the practical consequences of such an approach to indicate some of the anomalies that might arise.

Persons with long life expectancy would receive substantially longer sentences than persons with brief life expectancy. If, for example, there were two co-offenders involved in a major heroin importation, both of whom were subject to s 16G and thus deserved life sentences, one co-offender was a younger person with a longer life ahead of him or her, and the other co-offender being a person in middle age, the first co-offender would receive a substantially longer term of imprisonment than the second co-offender.

GUMMOW J: Is this construing section 16G, though?

MR GRACE: This case does, yes.

GUMMOW J: Where; which passage?

MR GRACE: It does not in terms construe it, it merely applies it and - - -

GUMMOW J: That is the distinction, is it not?

MR GRACE: Yes.

GUMMOW J: It applies it on an assumed construction.

MR GRACE: Yes, and I will come back to the forerunner for that. I will not read it, but his Honour goes on to discuss the one-third factor that her Honour took into account in sentencing Yook and Sung, and then at the bottom of page 436 his Honour refers to Rees, which was an unreported Court of Criminal Appeal decision in New South Wales on 22 September 1995. In that case the - and I will read:

the court dealt with some detailed evidence before it about the operation of the previous system of release on licence.

Then his Honour makes some notes. Over the page on page 437 at paragraph (e) his Honour says:

To illustrate the difficulty with working from average figures and number of years (rounded to the nearest year) and spent in custody by persons who served more than fifteen years...were as follows -

and he lists a large number of terms. His Honour says:

It is not easy to say what sensible use can be made of an average of those figures.

The average came to something in the mid-teens, as I understand it. Then his Honour goes on to say:

Although in some earlier cases, for the purpose of testing the reasoning of individual judges, people have worked backwards, as it were, from sentences that have been imposed to theorise about possible commencing points for the process of reasoning of an individual judge, so far as I am aware, and so far as counsel can indicate, there is no previous case in which a judge faced with the task of applying s 16G to an indeterminate life sentence has engaged in the exercise set out above. In my respectful view it is inappropriate.

It is, of course, not possible to reach a conclusion as to an appropriate sentence in one case, either by comparing it with the details of another case, or by adopting some mathematical formula which proceeds step by arithmetical step from a numerical premise to a numerical conclusion: see Young; Gallagher; Engel.

BRENNAN CJ: At the end of the day he says that, "There is some validity in the criticisms; it is time to resentence" and he says, "Taking into account 16G, I think the appropriate sentence is" so and so. Now, how does that illuminate the problem for us?

MR GRACE: Can I just read two further sentences of his Honour's judgment, on page 437. In that middle paragraph, his Honour says:

I would agree with Simpson J that, even allowing for the appellant's plea of guilty, the objective circumstances of the present case were so serious that, subject to s 16G, it is appropriate to treat it as a case that would have warranted an indeterminate life sentence.

After taking into account the provisions of s 16G as well, of course, as all the other provisions required to be considered by the Crimes Act of the Commonwealth. I am of the view that an appropriate sentence is imprisonment for 24 years with a non-parole period of 18 years.

Whatever the case is, whether it is a sentence of life imprisonment or a sentence of determinate years, there has to be, we submit, an adjustment made pursuant to section 16G.

BRENNAN CJ: We understand that that is your submission. We are waiting to hear you construe the section.

MR GRACE: I have attempted, in the analysis of those sections that refer to "federal life sentences" or "life imprisonment", to give your Honours a summary of those provisions in the Act which clearly make a distinction between normal sentences, that is determinate sentences, and federal life sentences. Section 16G could easily have been drafted in a way which would have excluded from its operation federal life sentences, and it is not a term that is unknown to this division of the Act.

KIRBY J: Upon one view the section refers to "federal sentence"; elsewhere in the Crimes Act there is the specific reference to "federal life sentence". It does not find its way into 16G and therefore it was talking of those federal sentences which are not federal life sentences.

MR GRACE: Yes, but as I sought to explain earlier, there are sections in the Act which refer to "federal sentence", which must, by their terms, refer to "federal life sentences".

GUMMOW J: Where are they?

MR GRACE: Section 16(1). They are set out at paragraph 2.4 of the outline of submissions: 16(1), 16F, 19(1), 19AG, 19AJ, 19AK, 19AS and 19AT(1). So we submit that section 16G cannot therefore be said to be inapplicable to federal life sentences by reason, merely, of the absence of the words "federal life sentence" from the words of the section.

KIRBY J: I think those last words are the critical, "merely by reason of that", but then I thought Chief Justice Gleeson in Yook and Sung was building himself up to the point where he was saying, "In fact, the time people serve ranges from 15 to 26 years and therefore it is just impossible to determine what is the meaning of life; it just depends on the particular case and therefore that can be looked after by the executive prerogative of licence or the Crown's prerogative of mercy." But, instead, he goes on, notwithstanding the difficulties that he reveals, to, as it were, invent a 24 years and then reduce that to the - or to specify the 18 years. It is a leap that I do not quite understand.

MR GRACE: Perhaps the key to his Honour's decision can be found earlier in the judgment at point 8 of 84 A Crim R page 435. His Honour says:

It has been held in a number of cases in this State that, although indeterminate life sentences were never the subject of remission, the expression "remission or reduction" is sufficiently wide and flexible to apply to the system that operated in the case of indeterminate life sentences. This, after all, is Commonwealth legislation which was expressed in terms that needed to be sufficiently comprehensive and flexible to cover the sentencing regimes in force from time to time in every State and Territory of the Commonwealth.

I do not know if that assists your Honour in understanding the basis of his Honour the Chief Justice's reasoning but if I could now turn to what Justice Hunt, as he then was, said in Paull's Case back in 1990 in 20 NSWLR 427. At the bottom of page 431, after referring to section 16G on page 430 as being "curious" and being difficult to properly understand, his Honour says:

Section 16G is drafted in different (and, in my view, quite uncompromising) terms. Rather than directing the courts merely to "have regard" to the absence of remissions, it requires the courts to "take that fact into account in determining the length of the sentence and [to] adjust the sentence accordingly". The legislative intent (whether deliberate or in ignorance) is thus clearly that the principles of sentencing to which I have referred are to be cast aside, and the length of sentence is to be adjusted (that is, reduced) from what would otherwise be appropriate to the particular crime in order to allow for the absence of a remissions system.

KIRBY J: Do you concede that - and this is relevant to Justice Gaudron's question - that for the worst possible case, it may be that the adjustment would be zero?

MR GRACE: No, I do not concede that.

KIRBY J: Even though there would be - that they have lost the chance of remission, that you would have cases where the person was objectively dangerous, or had repeated the offence many times, and that you would adjust to zero and leave it at life.

MR GRACE: In our submission, you could never make a nil adjustment. The statutory prescription is mandatory that there must be an adjustment.

KIRBY J: Therefore, you do say that there has been a, in effect, repeal of life sentence.

MR GRACE: Yes.

KIRBY J: What a curious way for Parliament to repeal this form of sentence, so well known, expressly stated in its other provisions.

MR GRACE: As Justice Hunt said, it may have been in ignorance, or negligent, or deliberate, one does not know.

KIRBY J: I do not think we normally impute ignorance to the federal Parliament.

MR GRACE: But nevertheless, as we discussed earlier this morning, it is not as if federal Parliament can be taken to have not known about the difficulties of interpretation, and have not done something to cure it. If that was its intention, it could have been made abundantly clear. Your Honour, just for the sake of completeness, could I indicate that section 21D of the Crimes Act provides that:

Nothing in this Part shall be construed as affecting the powers vested in the Governor-General in the exercise of the Royal prerogative of mercy.

I think that was a section that your Honour was concerned about. Could I also refer your Honour to section 19AK, which deals with the Shrestha problem, and which was introduced to cure the Shrestha problem after Shrestha.

Could I now take your Honours to the case of Ng - I am not sure of the correct pronunciation - which is an unreported decision of the New South Wales Court of Criminal Appeal, dated 25 July 1991 and, in that case, the Chief Justice presided, and Chief Justice Lee at Common Law and Justice Hunt comprised the other members of the court. At page 5 of the judgment, his Honour the Chief Justice had this to say about section 16G, the last paragraph on that page, point 7 on the page:

One of the principal difficulties in sentencing this applicant arises from the need to apply the provisions of s16G of the Crimes Act. Counsel who appeared for the applicant and counsel who appeared for the Crown both frankly acknowledged that they were perplexed when confronted with the task. In my view leaving aside the mitigating circumstances to be taken into account in favour of the applicant, which consist principally of his plea of guilty, his past and future co-operation with the authorities and the circumstances in which he is confined in prison, and having regard only to the objective circumstances of the matter this would be a case which warranted the maximum penalty, which is life imprisonment.

The application of s16G to an indeterminate sentence raises a problem, and neither counsel have been able - - -

GUMMOW J: That assumes that is has such an application.

MR GRACE: Yes, it does.

GUMMOW J: So, it assumes a construction.

MR GRACE: Yes, it does.

KIRBY J: You say that that is the correct assumption, given the range of sections of the Act that contemplate that it does apply, strange though that may seem?

MR GRACE: Yes:

and neither counsel have been able to submit any possible alternative solution to that problem other than to take the course of paying regard to the experience and practice in relation to terms of persons sentenced to indeterminate sentences prior to the enactment of this amending legislation, and to endeavour to make a judgment as to the consequences of the operation of a system of remissions against that background. This is not an exercise that can be undertaken with any degree of mathematical accuracy or analytical certainty. However, I consider that it is reasonable to begin with the proposition that the objective circumstances of the case which if they stood alone merited a head sentence of imprisonment for life, in the light of s16G should be taken as warranting a head sentence of twenty years imprisonment.

What his Honour has done, if for argument's sake one accepts a one-third remission, his Honour has started from a notion of 30 years, meaning life, to get to 20 years.

KIRBY J: But how can that be so? Assume you have a person who is 75 when sentenced. A life sentence for that person would be, one would assume, say, 15 years. This is the very kind of adjustment that his Honour rejected in Yook and Sung.

MR GRACE: Yes. The problem may be looked at this way perhaps. One of your Honours - I am not sure which one - mentioned this issue of parity and how do you compare persons in this situation to ones perhaps under State legislation. Determinant sentences clearly would get a section 16 reduction in those States which are relevant. As far as I am aware, under Customs Act prosecutions, the highest ever head sentence other than life has been 25 years. That was imposed upon a person who was sentenced in Victoria some years ago. Under the Victorian legislation which provided for one-third remissions, that sentence of 25 years equates to a notional starting point of 37 years, but if life means life - and that is if section 16G does not apply in this case - then theoretically - and this is of course dependent upon the age of the prisoner at the time of sentence - life could mean 80 years in gaol. If one had a 17 or 18-year-old who managed to live into his nineties or even to a hundred, he could serve 80 years in gaol.

So life imprisonment could therefore be so far in excess of what anyone would have received who received a finite sentence that a prisoner, particularly a young prisoner, would thereby feel that he had been very unfairly treated and it would clearly be a gross disparity by reason of the length of time he would have to spend in gaol.

So, the internal inconsistency that we would submit with a life sentence which is not subject to remission or reduction, whereas every other determinant sentence is subject to remission or reduction, creates an exponential gap which is not directly related to the increase in seriousness of the crime. So, you take the case where it might be a fine line as to whether a prisoner gets a determinant sentence or whether he or she should get a life sentence. It might be a very fine line in certain cases. A judge, particularly when dealing with a young prisoner, might decide, "I will give that prisoner 30 years" which would equate in pre-remission terms to a sentence of 45 years, instead of giving that person a life sentence because it might mean that person will spend 60 or 70 years in jail.

The fine line can be illustrated by the recent history in relations to Customs Act prosecutions where, even where there are quite large amounts of importation, nevertheless determinant sentences have been given. In other cases, such as the example of Ng, it was not an amount that in another case would have attracted life imprisonment but, nevertheless, the sentencing judge felt that it deserved it.

So, if one is talking about parity, gross disparity can occur if section 16G does not apply to life sentences.

KIRBY J: Parliament apparently did not like the result that this Court found was consequential upon the then provisions of the Act in Shrestha and enacted 19AK. What is wrong, and what would be wrong in principle, if this Court said, "Life is expressly provided. Life means life. If Parliament wants to provide for adjustment of that, it has to provide something clearer than 19G"?. There is still the provision that judges faced with that determination, may consider it a proper sentence to impose a determinant sentence which then attracts 19G. If they feel a life sentence is necessary, then there is the still the prerogative of mercy and there is the right to release on licence. It is true that there are some indications in the Act that this may apply to life, nonetheless it does affect a repeal of life sentence which one would expect to be more clearly expressed.

MR GRACE: It may come down to the interpretation of penal statutes and how they should be interpreted. But, your Honour's suggested approach would then rely upon a future exercise of executive policy or parliamentary action, which cannot be guaranteed. Could I just correct something that, perhaps, I did not relate to your Honour correctly earlier, when talking about Shrestha. This Court, by a 3:2 majority held exactly what 19AK now says, that you do not take the foreign nationality into account as being a reason for refusing a parole order. So, Shrestha is, perhaps, not the best example, but I take your Honour's point. One cannot be confident of the reaction of Parliament if its non-reaction in relation to the cases that have dealt with section 16G would continue in the way it has to date.

KIRBY J: But the problem is, as Chief Justice Gleeson said, to find a principled way of adjusting by reference to something other than life when they are so multitudinous, the factors that lead to that adjustment, that it is very hard for a court to do it in a principled fashion.

MR GRACE: The simple, practical answer might be that one ought always, when any judge confronted with the situation, to have in mind sentencing for a determinate period of years, rather than starting with the proposition of life, which is so uncertain in terms of how many years that refers to.

KIRBY J: But that is to defy Parliament which has provided for life sentences in some cases.

MR GRACE: Except for the interpretation of 16G which we contend.

BRENNAN CJ: Now, coming to the interpretation of 16G?

MR GRACE: Yes. Could I take your Honours to some general principles in respect of interpretation of penal statutes.

BRENNAN CJ: What about taking us to the words?

MR GRACE: I can do that, too, your Honour.

BRENNAN CJ: Your proposition is that "federal sentence" includes "federal life sentence" and therefore the dispositive provisions of the section apply to federal life sentences. That is your argument, is it not?

MR GRACE: Yes, your Honour.

BRENNAN CJ: The argument against it is that the dispositive provisions of the section indicate that it does not apply to federal life sentences.

MR GRACE: Yes.

BRENNAN CJ: How do you resolve one or the other?

MR GRACE: Can I take your Honours to the explanatory memorandum which accompanied the Bill when it was introduced to the House of Representatives, the Crimes Legislation Amendment Bill (No 2) 1989 Explanatory Memorandum at page 10. Perhaps I can commence at point 4 on page 1, in a subparagraph headed "Outline". In point 4, as a main purpose of the Bill, the Memorandum of the Attorney-General, Mr Lionel Bowen at that time, provided that:

The Crimes Legislation Amendment Bill (No 2) has 13 main purposes:

4. to provide that federal offenders sentenced after the commencement of the new sentencing provisions will not have their non-parole periods reduced by remission, notwithstanding that State law, in some jurisdictions, provides for remissions to reduce State non-parole periods;

Then there is, in point 2:

2. to give further guidance to the Courts when sentencing federal offenders -

and there does not seem to be any other point in the main points that would help. Then one goes to page 10, which deals with the proposed section 16G, and the Attorney says this:

Federal sentence to be adjusted if no State or Territory remission laws apply.

If the State or Territory in which the person is sentenced to imprisonment does not provide for head sentences to be reduced by remissions or reductions then sentencing court must take into account that fact and adjust the sentence accordingly i.e. the sentence is to be shorter because the period fixed by the court will not be reduced by remissions or reductions - a 6 year sentence will remain a 6 year sentence.

That is all that the Attorney had to say about it. That, perhaps, does not give one any great assistance one way or the other.

Could I take your Honours to the case of (1980) Smith v Corrective Services Commissioner of New South Wales (1980)147 CLR 134. That was a decision of this Court on appeal from the Supreme Court of New South Wales. That case dealt with the interpretation of a particular regulation of the prisons regulations in New South Wales, regulation 110, and had to do with the issue as to whether remissions would be lost if there had been a breach of parole, which there had been for Mr Smith, and he was reclaimed. At page 139 in the joint judgment of the Court, after referring to the regulations, at point 5 on the page their Honours said this:

Of course, these observations do not of themselves establish the applicant's case, but they indicate something of the context in which reg 110 is found, and lead to an expectation that if, in the event of revocation of parole, a prisoner cannot claim an entitlement to the remission prescribed by that regulation in respect of the period of his sentence that he has served before being released on parole then the law in question will point clearly and unmistakably to that conclusion. It will not be found by implication which results from the interpretation of an obscure or ambiguous provision. The expectation to which we refer is reinforced by the established principle of statutory interpretation requiring strict construction of a penal statute, or an Act which affects the personal liberty of the subject.

Maxwell on Interpretation of Statutes and other cases are referred to. We submit that this is not certainly, but possibly, a case in which the interpretation of the section is ambiguous and it is ambiguous potentially or perhaps because of the various different references to life sentences throughout this division of the Act, the non-reference to life sentences in this particular section and the clear fact that life sentences must be considered when considering other sections of the Act which do not specifically mention the phrase "federal life sentence".

Before I leave this issue of the words of the section, could I ask your Honours to take into account the heading of the section which, we submit, is in uncompromising terms which says clearly that:

Federal sentence to be adjusted if no State or Territory remission laws apply -

McHUGH J: Is that part of the Act?

MR GRACE: It is not part of the Act but it is a matter that can be taken into account, we submit, in the interpretation of the Act and I refer your Honour specifically to two sections of the Act, section 13 of the Acts Interpretation Act 1901 and subsection (3) provides that:

No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.

But section 15AB(1) provides that:

Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

and there are various - - -

GUMMOW J: You have to fix on subsection (2) paragraph (a), do you not?

MR GRACE: Yes, (2)(a):

all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;

KIRBY J: This does not really take it any further than the section itself does, does it? I mean it begs the question of whether the intention is that 16G will apply to life sentences. I mean, the heading is perfectly reasonable as a generality, as a short description. It still leaves the question of whether it applies to life sentences of their character, whether they can be "adjusted"?

MR GRACE: Yes. I wanted to take your Honours to a number of texts that deal with statutory interpretation and also - - -

GUMMOW J: What will they show us that we do not know already?

MR GRACE: If this is a case of ambiguity, then the doubt should be resolved in favour of the prisoner. That is in effect what they say.

GUMMOW J: You took us to Smith v Corrective Services Commission.

MR GRACE: Yes, I took your Honours to that. There are a number of other decisions.

GUMMOW J: Decisions of what courts?

MR GRACE: High Court and also the Court of Criminal Appeal in England. Could I just list the cases for your Honours' use. First there is R v Chapman (1931) 2 KB 606, a decision of the Court of Criminal Appeal. That court, in a very short judgment given by Lord Hewart, Chief Justice, said at page 609, quoting from Maxwell, Interpretation of Statutes, that:

"Where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the Legislature which has failed to explain itself."

In R v Adams [1935] HCA 62; 53 CLR 563, which is a decision of this Court delivered in 1935 - - -

KIRBY J: Why did you begin with the foreign jurisprudence? Is this a purely chronological approach on your part?

MR GRACE: Purely chronological.

GUMMOW J: Why not stay in this Court? You have something in this Court that helps you.

MR GRACE: Except that this Court also refers to Maxwell.

GUMMOW J: Why is that not sufficient? Why does it need to be buttressed by what has been said a long time ago in another country in an inferior court in that country?

MR GRACE: The only reason, your Honour, is to emphasise that both this Court and English courts have relied upon the same text to come to the same conclusion and that might be of assistance to your Honours.

GUMMOW J: It will not assist me.

MR GRACE: In R v Adams [1935] HCA 62; 53 CLR 563, a decision of this Court in 1935, at the bottom of page 567, quoting from some previous English texts and decisions, the Court says:

No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.

More recently in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569, at the bottom of page 576 his Honour Justice Gibbs, as he then was, quotes with approval from Adams' Case and Craies on Statute Law in commenting that:

if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.

BRENNAN CJ: There is a pithy statement. Do you need any more?

MR GRACE: I do not need any more, your Honour. Could I also refer your Honours to the various texts.

BRENNAN CJ: Why?

MR GRACE: I will not read them, but merely Pearce, Maxwell, Crais and Bennion which all come to the same conclusion. We submit that, on its plain meaning, that section 16G does apply to "federal life sentences". If the interpretation is doubtful, or if there is some ambiguity in the words of a section, we submit that it should be resolved in favour of the appellants. If this ambiguity is one that Parliament did not envisage, or did not consider, then it is a matter for parliamentary amendment. But the plain meaning, we submit, is clear and it should be applied to the benefit of the appellants in this case.

KIRBY J: But I am a judge sitting in Goulburn and I have got one of these cases, a man is sentenced, a woman is sentenced, and I have to adjust the length of the sentence. Now the sentence that I consider proper is life. How do I then find what the length of the sentence is that I may adjust? How do I give content to life being a finite, definite, period? Justice Gleeson does not explain it on any of the occasions he has done it. He has just plucked 24 and 20 out of the air.

MR GRACE: Yes, and there does not seem to be any - - -

KIRBY J: I say that without disrespect to his Honour, because he is trying to grapple with 16G and to do what he considers is appropriate.

MR GRACE: The only way of grappling with it is to act in the way that his Honour did and which other judges of the New South Wales court have done. That is the only way that one can give sense.

KIRBY J: So even though you think life is the appropriate sentence, and even though Parliament has provided for life, you then have to conceive of what non-life is for the purpose of applying 16G? Does any other State follow the New South Wales line?

MR GRACE: No State has - - -

KIRBY J: Or Territory?

MR GRACE: No State or Territory as far as I am aware has considered the issue. Paunovic is the only decision of another jurisdiction, that is a Western Australian case. Paunovic (1990) 51 A Crim R 174, refers on page 177 to similar issues in respect of section 19AA and 19AG of the Act, and works out a way of calculating, and I will not read it to your Honours, but works out a way of calculating the various reductions that have to be made pursuant to section 19AA which applies in States where there are remissions.

But other than that reference, I am not aware of any decision of any State or Territory of Australia other than in New South Wales or the Northern Territory which has dealt with this particular problem.

In Victoria, there have been a number of sentences of life imprisonment imposed, but it appears that this issue has not been raised. One of the decisions in the case of Mooseek, which is referred to in the respondent's outline of authorities, and it appears that there certainly is no discussion in the Court of Criminal Appeal judgment in relation to the issue.

KIRBY J: Presumably that is on the footing that the Court of Appeal considered it did not apply. Is that correct? Or just did not consider - - -

MR GRACE: One does not know. Certainly there is no discussion of it at all in the report. Perhaps I could approach it in this way; the interpretation of the section should not be dependent upon the difficulties involved in the method of calculation. If the section - - -

GAUDRON J: But what if it is the impossibility of calculation, as distinct from a difficulty?

MR GRACE: If there is impossibility, nevertheless, that interpretation, if it inures to the benefit of a prisoner, should apply. So that the method of calculation, or the problems, or even impossibility of calculation, should not be the determiner as to the interpretation of the section.

KIRBY J: Except that one of the principles of construction of statutes is that Parliaments are presumed to intend that statutes will apply sensibly, according to their terms, and be easy to apply. The problem is that, on your theory of the section, the judge just has to, though he thinks or she thinks that life imprisonment is the correct sentence, has to then postulate, contrary to that assumption which is permissible under the Act, some invented notion which is susceptible to adjustment.

MR GRACE: Yes. I repeat, with perhaps more force, that Parliament itself has created, in effect, a de facto system of remissions for life prisoners under the Act, with the combined operation of section 19AZC and 19AP. So that, by legislative action, notwithstanding what a trial judge might do, Parliament has determined that there is, in certain circumstances, to be finite periods of imprisonment served by persons sentenced to life. Whether that was intended or not one cannot be sure, but, from the clear terms of those provisions, it appears to be a clear statement of parliamentary intention.

BRENNAN CJ: Mr Grace, we have talked pretty widely about this subject.

MR GRACE: Yes, there is nothing further I wish to submit, your Honour.

BRENNAN CJ: Thank you. Mr Game.

MR GAME: If the Court pleases. Part 1B of the Crimes Act 1967 replaced the provisions of the Commonwealth Prisoners Act which was repealed by this legislation. Section 19 of that Act was, in effect, the statutory precursor of section 16G and sections 19AA and 19AG. If I could take the Court directly to section 19 of that Act, it provided that provisions of State or Territory law with respect to reduction or remission of sentences or minimum terms of imprisonment that apply to federal offenders in State prisons. That is a statutory provision which has its constitutional source in section 120 of the Constitution.

By the time Part 1B came to be enacted, remissions had been abolished in New South Wales but nowhere else. So that it was not possible to have a system whereby the State system in every State operated on the sentences that were imposed. There were differing remission systems in every State - widely differing remission systems. Some provided remissions on head sentences only, some on head sentences and non-parole periods, some operating differentially on head sentences in non-parole periods; for example, New South Wales and South Australia are two clear examples of the remission systems operating differentially on head sentences and non-parole periods.

The fact that remissions had been abolished in New South Wales was a matter that was specifically referred to in the second reading speech on section 16G and in the explanatory memorandum. What the legislation sought to do was to ensure that those prisoners - it sought to do more than this but it sought to ensure that those prisoners who were sentenced in New South Wales with respect to a fixing of their head sentences - and you will see that the words "minimum terms" do not appear in section 16G but do appear in section 19 of the old legislation. But, in effect, their sentences were - the court would have regard to the absence of remissions on the fixing of their head sentences and adjust the sentence accordingly.

McHUGH J: Can I just ask you this, because it has occurred to me for some time, in looking at this section, that there may be a simple explanation to it, but you may say it is not, and it is that the argument that is being addressed seems to look at 16G as though one is only looking at it from an intrastate point of view, whereas, on its proper interpretation, you are looking at it as a federal statute. When the section says that:

If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence -

so, it is really asking you to look nationwide and adjust the sentence in that sense. So you can apply it to life sentences then, having regard to the history, because there is nothing - when you take it into account, nationwide, there is nothing to adjust.

MR GAME: Exactly, your Honour. The very last thing one does in imposing a sentence would be to apply section 16G.

McHUGH J: Yes.

MR GAME: But if you have decided that you are going to impose a life sentence, then that is why it is important. Section 16G is restricted to the fixing of the head sentence because you can impose a non-parole period on a life sentence under this legislation. It does not really turn on whether or not "federal sentence" includes a federal life sentence or not. The point is that this section - there are indications that it does not, but the question is really whether or not the provision has any work to do in respect of a life sentence.

The mistake that was made by Chief Justice Gleeson in both cases was to, in effect, apply section 16G somewhere along the line before he had determined what the appropriate sentence was. For example, in the first case he says, "The objective circumstances would produce X", but he ended up with a sentence of 12 with 9. If you do the reverse calculation on that, that means he thought the appropriate sentence was 18 years, if you add the 50 per cent. In the case of Yook, he said, "The objective circumstances plus the plea", and then he ended up with a sentence of 24. If you add the 50 per cent to that you are back to the 36 years, which was exactly the same figure as her Honour Justice Simpson had commenced with. So that, in effect, there is really a very simple explanation for this, which is, does the section have any work to do if you have decided to impose a life sentence?

GUMMOW J: And, if so, why does it not have any work to do?

MR GAME: It does not have any work to do because there are no remissions in any State on life sentences. This is a section about head sentences which can be explained both by the statutory context and the terms of the provision.

Now to give the Court another example, we have extracted what the relevant provisions are with respect to very short sentences. Perhaps, if I could just hand this schedule to the Court. Your Honours will see how the provision could have no work to do with respect to very short sentences. I will just hand the Court this schedule.

KIRBY J: I note that, whilst that is being handed up, the Court of Appeal here did provide a non-parole period. What is the section, or could you give us the section that permits that?

MR GAME: Could I come to that in one moment, your Honour. These have been abolished, except for Western Australia and Queensland. Say, a judge decided that the appropriate sentence would be one month. Would it be appropriate for the judge then to apply section 16G and reduce it to 20 days? The answer must be, no. The section has no work to do with respect to very short sentences. All the word "federal sentence" means in all of those provisions is it is telling you, the reader, that you are now talking about jail sentences because it says, "but from section 16AV to section 19AZ" which are all about when people receive jail sentences.

KIRBY J: It says in its terms, it is to be served in a prison. So, it is a prison sentence.

MR GAME: Yes. Your Honour, in El Karhani, held that that is a reference to that head sentence, that it was so held in Paull by Justice Hunt. The statutory context, we would submit, supports that conclusion. It is instructive to see what happens with respect to prisoners who are sentenced in States where there are remission systems. If you go, firstly, to section 19AA, what that section says is - the effect of that section is that, if you were sentenced in a State where there is a remission system operating, then the remission system in so far as it applies to head sentences applies, but not the remission system in so far as it relates to non-parole periods.

Now, in this case, these offenders were, in fact, sentenced in the Northern Territory at a time when there was a remission system in operation. It is just a coincidence that the Court of Appeal delivered its decision after the enactment of this legislation - sorry, after the repeal of remissions in the Northern Territory.

KIRBY J: Do we have reference to where that was repealed? Is that in your - - -

MR GAME: I have provided a schedule. It was repealed on 1 July 1996 in the Northern Territory. Now, section 19AG says, "If you are being sentenced in a State where there is a remissions system, so this is a 19AA sentence, and which reduces the non-parole period, make an adjustment downwards of the non-parole period." But that cannot affect the proper interpretation of section 16G. But what that section is seeking to do is to seek - it is really trying to achieve the unachievable. It is trying to achieve parity between federal and state prisoners in State prisons who are being sentenced for life crimes, and its intention is to reduce the non-parole period so that the actual time is comparable.

If one goes back to section 19AF, we would submit section 19AF is a decisive example of a demonstration of how it is not intended that the construction that my friend puts to the Court should be adopted. Section 19AF says this, in fixing a non-parole period, the court should have regard to the fact that the head sentence is to be reduced by, shall we say, a third and it is not to make the non-parole period longer than the remitted head sentence. So, for example, if you had a sentence of 15 years and you had a remission system that reduced the sentence to 10, you are not to impose a non-parole period of 11. But it says this section is not to apply with respect to life sentences. That is the Paunovic example. That is the Western Australian and Queensland systems. It is saying not to make the adjustment. How could you possibly arrive at this point if you thought that section 16G had any work to do with respect to life sentences?

Moreover, if my friend's interpretation is correct, it would mean that, had the Court of Criminal Appeal delivered its decision on 29 June, this person who received a life sentence in the Northern Territory where there are no remissions on life sentences, no non-parole periods on life sentences and no remissions on non-parole periods would receive the full life sentence with whatever non-parole period is to be imposed but, by virtue of being sentenced two days later, would in fact receive a sentence which was a third less.

KIRBY J: But that could just be the effect of transitional legislation. This is quite complex legislation and can have unexpected or unintended results.

MR GAME: No, your Honour, the point is that section 16G is trying to protect those prisoners who are not being sentenced in remission States. It is not intended to produce for them a benefit over other offenders. That is the point of the example. As I said, firstly there are a number of provisions in the legislation which make it perfectly plain - 19AF(2) is a good example - that the legislature intended that there would be life sentences imposed. Section 16G only applies to head sentences. The application of section 16G is the last thing that one does. There are no States in which there were remissions on life sentences. So our construction of the provision and its application is a fairly simple one, and that is the way we would submit to the Court that it should be construed.

KIRBY J: Well, can I just ask you, testing that, a federal sentence in 16G does not seem to exclude the possibility of federal life sentence, unless there is something special in 16G that permits that. Now, if that is so, then you say it is the last step that you take; but it is the last step you take in all federal sentences, except federal life sentences. Why, if Parliament could have provided that, did it not say so expressly? Why should not the statute be given a beneficial construction which would ensure that it is applicable to all federal sentences, including federal life sentences, and not just federal non-life sentences?

MR GAME: Your Honour, all the section is saying is that the court is to have regard to the absence of remissions in a particular State and make an adjustment of the sentence. But that cannot be the end of the examination, because there are different kinds of sentences that are imposed in particular States. I have given the example of very short ones, and this is a clear case of very long ones, where no remissions are allowed. So, having regard to what - discretionary executive acts will produce no adjustment of the sentence, and could produce no adjustment of the sentence.

There are some indications that "federal sentence" is not intended to, by its terms, include "federal life sentence". Some examples have been given where "federal sentence" - first of all, there is the fact that the Act refers repeatedly to "federal life sentences" and contemplates that they will be imposed. Secondly, there is the example that I gave of section 19AF(2). But if one looks at some other provisions, for example, 19AB, which is about the fixing of the non-parole period - and this was the question your Honour Justice Kirby asked before:

Subject to subsection (3), where:

.....

(b) a court imposes on the person a federal life sentence, or federal sentence that exceeds, or federal sentences that, in the aggregate, exceed 3 years;

.....

the court must either:

(d) fix a single non-parole period -

and so forth. Subsection (3) provides that, "the court may decline to do" so, having regard to the particular circumstances of the offence.

That is an example - admittedly, it is not necessarily a very strong example - where "federal life sentence" is specifically referred to where there would be no need to refer to it at all, if one contemplated that "federal sentence" included a federal life sentence.

Now, another example is section 19AL, which speaks of federal sentences in part, but then, subsection (2) refers to:

a federal life sentence or a federal sentence of, or federal sentence aggregating, 10 years or more -

That one actually cuts both ways, because 19AL(1) might be thought to include a federal life sentence. So, there are indications, we would submit, but not terribly strong indications, that the words "federal sentence" exclude federal life sentence, but our main argument is that that is not really the question that the case throws up; that the question is a much more straightforward one, which is: what work does the section have to do in these circumstances? It could not be contemplated that the work it had to do was to exclude the operation of what had been determined to be a life sentence, having regard to the objective seriousness of the case.

The single problem which my friend alluded to, which was the question of parity of co-offenders, in our submission, that single problem can be addressed by the specific application of the parity principle with respect to co-offenders. There are cases which say that the differing effect of remission systems on co-offenders is a factor to be taken into account in applying the parity principle. Postiglione [No 1] in the New South Wales Court of Criminal Appeal is just such an example and there is a South Australian case called Disney (1984) SASR which is another example of the differing operations of remission systems on offenders.

The decision of this Court in Radenkovic is an example of ensuring parity with respect to the differing operation of the remission system so that one can go back to resolve my friend's problem and, in our submission, the only problem that is made good, in essence, is a problem that can be resolved by application of ordinary principles with respect to parity.

Now, with respect to some specific questions, your Honour Justice Kirby asked some questions about mandatory life sentences. In New South Wales there are provisions now, both with respect to serious drug offences and with respect to murder offences, if the court is satisfied of particularly aggravating circumstances, then the court is to impose a mandatory life sentence but they are provisions which have to be satisfied. The court has to be satisfied as to a particular aggravating circumstances and I understand that there are similar provisions in Queensland with respect to drug offences.

KIRBY J: But none of them attach to section 16G? There is no federal mandatory life sentence?

MR GAME: No, your Honour, that is quite true. The reference in the provisions to sentences of life imprisonment are exclusively, I think, with respect to State sentences of life imprisonment. When they are talking about federal sentences they say federal life sentences. I am not sure whether there are any mandatory life sentences with respect to federal offences. Treason, according to the legislation, has a mandatory death penalty which has been repealed. I cannot answer the question of whether or not there are any federal offences which have mandatory life sentences.

There was one, it was a quite minor matter, but there was one error in the table that was provided which is that in Western Australia there were remissions of 10 per cent on non-parole periods. That appears on the second page of the table. The answer should be "yes" on non-parole periods, "10 per cent".

KIRBY J: Where do we put that in? I have the second page of the table.

MR GAME: Ten per cent. It is Regulation 46 Community Corrections Regulations. The answer should be "yes". We have one complete set of all of that legislation if that would be of any assistance.

KIRBY J: But you have "yes" in the column. Yes - one-third remission.

MR GAME: Yes, but on non-parole period it should say "yes" for Western Australia. It was 10 per cent. It has been abolished.

KIRBY J: Do these state the law as at the time of the sentence of the present - - -

MR GAME: We have set out when they were appealed, when they were abolished.

BRENNAN CJ: Mr Game, just one question. How does one know whether a prisoner is going to serve his sentence in a particular prison?

MR GAME: There are no federal prisons.

BRENNAN CJ: I know that.

MR GAME: Subject to Interstate Transfer of Prisoners, he would be sentenced in the State in which he was - he would serve his sentence in the State in which the sentence was imposed.

GUMMOW J: But how would one know that? In other words, how does one know what it is that will trigger section 16G in advance, as it were? Its condition "if". How does one know if that is - in terms of a statute rather than the practice.

MR GAME: I am not sure, apart from the fact that the State court exercising federal jurisdiction is imposing the sentence, and therefore the only authority that that State court has is in respect of - - -

GAUDRON J: They have to serve a sentence before the Interstate Transfer of Prisoners legislation comes into operation, in any event. They have to be in prison before it operates.

MR GAME: Yes. When that legislation comes into effect that legislation seeks to ensure that they are not disadvantaged with respect to their transfer. So I suppose the - - -

BRENNAN CJ: The warrant of commitment issues out of the sentencing court to the local gaoler.

MR GAME: Yes.

BRENNAN CJ: Yes, I see.

MR GAME: Unless I can be of further assistance, those are our submissions.

KIRBY J: I just have two little questions: one, you will remember that I asked Mr Grace about the meaning of "life" and the history of life sentences. Do you have any information on that?

MR GAME: I am not sure that I can be of very much more assistance than Mr Grace, I am sorry. If I find anything in the next day or so perhaps - - -

KIRBY J: If the Chief Justice agrees.

BRENNAN CJ: If you find something you can provide it to Mr Grace and then a joint submission can be made or, with the consent of one party, the other can put something in.

MR GAME: I should mention, Russell Cox was in prison serving a life sentence for breaking out of the gaol in New South Wales, in particular the aggravating circumstances and then committing a whole series of offences. His sentence has recently been redetermined under the redetermination legislation, but it certainly is not the case that there are only life sentence prisoners with respect to murder.

KIRBY J: The redetermination of sentencing legislation is quite complicated. Is that an alternative way of approaching the thesis of 16G, that you sentence for life but then, either by the prerogative of mercy or the licence or by some specific legislation like the redermination legislation, that there is a way of doing it that does not involve the leap in the dark that Chief Justice Gleeson ventures? Is that a way other Parliaments have dealt with this problem or not?

MR GAME: Prior to Part 1B a prisoner sentenced to life imprisonment under Commonwealth legislation did not receive a non-parole period. Other legislation was introduced at the same time which enabled those prisoners to apply for non-parole periods. Kelleher is an example and it is a pending special leave application before this Court. On our submission, there is no suggestion that section 16G would apply to the fixing of that non-parole period, although the applicants in that case obviously would submit - - -

KIRBY J: That is not necessary, because there is a specific provision in 19AB.

MR GAME: Yes. Are you have seen, there are licence provisions under this legislation but - - -

KIRBY J: All of this is ex post. This case is about what happens a priori at the time of sentence.

MR GAME: Yes, that is exactly - - -

KIRBY J: My final question was related to whether the Crown had any information about the other cases which have followed the New South Wales line in other States or Territories.

MR GAME: We are not aware of any cases which have followed those decisions and, according to our - and I think this would be fairly safe to say, since it is the same officers which instruct me - they have not been either considered or applied in other States.

KIRBY J: Similarly, the Northern Territory decision.

MR GAME: I do not know, your Honour. It is the first, and I think the only, that - - -

KIRBY J: Thank you.

BRENNAN CJ: Thank you, Mr Game. Mr Grace.

MR GRACE: In relation to section 19AF(2), we take issue with the submission made by the respondent, and we submit that that subsection does not mean that section 16G does not apply to federal life sentences. The second point, to answer, I think, a query of your Honour the Chief Justice, is that, under the Customs Act, the penalty for a person who is convicted of importing the quantity which these appellants imported is imprisonment for life - this is expressed in terms in the Customs Act in section 235(2)(ii)(B) - the sentence is:

imprisonment for life or for such period as the Court thinks appropriate;

In the outline of submissions, I set out in paragraph 2.17 the list of offences which attract life imprisonment and, in respect of those offences there set out, with the exception of the Customs Act, the penalty expressed in the penalty sections are these words, "imprisonment for life".

Now, there has been interpretation of what is meant by such provisions and there is authority for the proposition that it means up to that level of imprisonment but does not mean mandatory life.

Could I next, and finally, deal with this issue of parity. In this case, one can only deal with the issue of parity by giving the reduction or adjustment pursuant to section 16G. These appellants would have a justifiable sense of grievance, bearing in mind the adjustments that have been made in respect of the New South Wales prisoners who have had the benefit of the interpretation that the New South Wales Court of Criminal Appeal has given to section 16G. So, at least in respect of these offenders, if the Court was of the view that the interpretation given by the Northern Territory Court of Criminal Appeal is the correct one, they would nevertheless have a justifiable sense of grievance that they have been unfairly treated by reason of the differing interpretations given in New South Wales.

McHUGH J: Can I just put this to you. If you look at the history of 16G, if you look at the Commonwealth Prisoners Act in section 19 it seems plain enough that the legislature was attempting to ensure that persons sentenced for State and federal offences were dealt with equally and not in a discriminatory fashion. So when 16G talks about State or Territory sentences which are not subject to remission or reduction and requires you to take that into account and adjust the sentence accordingly, surely it is directing you to look at what would happen to a State prisoner who had a comparable sentence imposed on him. If you look at the State prisoners in, say, New South Wales or anywhere else, who would get life, there is just nothing to adjust. Their sentences are not adjusted and therefore you would not adjust the Commonwealth sentences.

MR GRACE: The considerations that come into play in the interpretation of section 16G ought not necessarily just to be restricted to the length of time. One has also got to consider parity issues and the gravity of the crime. So when one comes to consider how section 16G is to be applied, one has to consider that the Federal Government was not only trying to ensure that there would be parity between the length of time that persons in the various jurisdictions in Australia spent in custody for a given crime - - -

McHUGH J: But that seems to be - 16G is operating right at the end; it is at the end of the process, and it says you look at all the factors and you say, this is a sentence which objectively and subjectively requires 15 years; however, this is in a particular State where the sentences are not subject to remission or reduction so you have got to deal with it on that particular basis, and you have got to give a comparable sentence to a sentence that would be dealt with under State or Territory law.

MR GRACE: But you are not giving a comparable sentence, with respect, your Honour, because every sentence of a determinate length imposed under the Customs Act has a section 16G reduction or adjustment. Those offenders whose crimes fall into the level of severity that would justify life imprisonment are suddenly elevated in terms of length of time in custody exponentially above what those who have been sentenced to a determinate length will serve.

GAUDRON J: What about those who are given a life sentence in States that do have remissions?

MR GRACE: There has not been an occasion where there has been a determination that such a person would be entitled to remission. It may be possible - - -

McHUGH J: Do not worry about that. The legislation in States can change from day to day.

MR GRACE: Yes. It is yet to be determined as to whether any States would, in respect of offenders not sentenced for murder to life imprisonment, grant those prisoners remissions because in those States which grant remissions there appear to be no prisoners who have been sentenced to life presently serving sentences that would otherwise, if they were sentenced to determinate lengths, would be subject to remissions. It is a situation, to answer Justice Gaudron's point, that has not arisen yet; it may arise. But you do have a situation in Australia that no one at the present time, as far as my researchers indicate, has been sentenced to life imprisonment for a State-based drug offence.

McHUGH J: That has nothing whatever to do with the construction of this section. Its meaning does not depend upon what some court has or has not or will do. You have to look at it according to its language and according to the fact that it may or may not operate in States with regimes of remissions or reductions of sentences. You have to try to give some sense to it in that context.

MR GRACE: But the only way of achieving the parity that Federal Parliament was so intent on achieving in passing this legislation is to give effect to section 16G in the way that it is submitted by the appellants, because otherwise you have the curious situation where everyone else sentenced under the Customs Act for drug offences gets the benefit of a 16G reduction or a 19AA reduction, but the prisoner who is sentenced to life - - -

McHUGH J: Because you are in a different universe of discourse. You have thrown away the key so far as the person who goes for life, and that is it. Whether the life is going to be 10 years, 5 years or 70 years is irrelevant.

MR GRACE: Yes, but yet the distinction between the gravity of the conduct may be minor. It may be a fine line.

BRENNAN CJ: Then that might indicate what the sentence ought to be, but that is not to the point, is it?

MR GRACE: Could I remind your Honours of what the Court of Criminal Appeal said in El Karhani's Case, the New South Wales Court of Criminal Appeal of which your Honour Justice Kirby was a member, of the difficulties in trying to make sense out of the new division into the Crimes Act that was introduced by Federal Parliament which incorporates section 16G and other provisions and I think the words that were used, if I am not mistaken, were something along the lines of it being mind-blowing to try and work out the interrelationship between the various provisions and trying to achieve some sense and I think it was either in that case - yes, it was in that case at page 387 where the court said this, 21 NSWLR 387B:

In parting with this case we would wish to associate ourselves with the comments of Hunt J in R v Paull concerning the need for further attention by Federal Parliament to the ambiguities of the Act brought to light by this case and by R v Paull: see also the more recent remarks of Sully J in R v Ng Yun Choi.

In saying this, we are mindful of the difficulty which Parliament faces in resolving the conflicting policy choices which need to be made and to which we have referred at the beginning of these reasons. The present legislation glosses over that difficulty and does not resolve it. Indeed in some ways it exacerbates it. Different views may be held about the provision in s 16A(2) of a checklist of considerations to be taken into account, to the extent relevant and known, in determining the sentence. The time taken in sentencing Federal offenders will necessarily increase under this legislation. However, judges must comply with the law as Parliament has stated it. The meaning of s 16G and the adjustment which it requires, is not plain. The obligation under s 16F to explain certain matters to the convicted offender makes it self-evidently desirable that that which has to be explained is itself reasonably clear. This cannot be said either of the purpose of the new legislation nor of its terms.

BRENNAN CJ: Where does that take us?

MR GRACE: It takes you to a result at the end of the day where the President, as he then was, of the New South Wales Court of Criminal Appeal and other judges of that court also endorsing remarks prior to that date of other judges of that same court, and later followed by other members of the court making very strong comments indeed about the difficulties of interpretation of this particular Act and this particular division of the Act.

McHUGH J: Difficult or not, we have to interpret it and we are not going to be assisted in our task by being told that other people said it was difficult.

MR GRACE: I appreciate that, your Honour.

BRENNAN CJ: I mean, at the end of the day, as you put it, we now know that it is difficult. That is a big help, Mr Grace.

MR GRACE: Yes, but at the end of the day, if there is an ambiguity then it should be resolved in favour of the appellants.

BRENNAN CJ: We heard that argument a long time ago.

MR GRACE: Those are the matters in reply.

BRENNAN CJ: Yes, thank you. The Court will consider its decision in this matter. We will adjourn until 10.15 tomorrow morning.

AT 12.24 PM THE MATTER WAS ADJOURNED