PNJ v The Queen [2008] HCATrans 370 (12 November 2008)

Last Updated: 13 November 2008

[2008] HCATrans 370

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A8 of 2008

B e t w e e n -

PNJ

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 12 NOVEMBER 2008, AT 10.22 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC: May it please the Court, I appear with my learned friend, MR H.M. HEUZENROEDER, for the applicant. (instructed by George Mancini & Co)

MR M.G. HINTON, QC (Solicitor-General for South Australia): If the Court pleases, I appear with my learned friend, MS H.H.L. DUONG, for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Yes, Mr Wells.

MR WELLS: May it please the Court. Could I invite your Honours to have near at hand the decision of this Court in Pearce, because that is where I will first be going. It is in the bundle of cases that has been provided to the Court. Your Honours, there are two routes leading, we submit, to the conclusion that the prosecution of this information should be stayed as an abuse of process. One route assumes a power to backdate the commencement of the non-parole period in this case. The other route denies a power to backdate the commencement of the non-parole period. Your Honours, in brief, the two routes may be pursued in this way and I shall proceed by pursuing the first of the two routes mentioned, that is assuming a power to backdate the submission that we put upon that assumption if there is a power to backdate under section 30(1) or under section 30(2).

The submission that we put is that in any event even a full backdating of the commencement of the non-parole period, even if it goes back earlier than the date on which the victim died – that is, goes back to the date on which the applicant first was taken into custody on 26 September 2002 – does not sufficiently alleviate double punishment. The result will be that upon a plea of non guilty there will be initiated an irremediable miscarriage of justice which identifies its proceeding at this stage as an abuse of process. We put the further submission, however, that there can be on no view a backdating of the non-parole period any earlier than the date upon which the victim died, which was 28 June 2004.

The alternative route works through these steps. Under section 30(2) there can be no backdating undertaken in relation to this sentence and this non-parole period, that there is no discretion, that is, at large or general, under section 30(1) of the Sentencing Act to backdate either the sentence or the non-parole period and that in that respect and to that extent the judgment of the Court of Criminal Appeal in Colson is wrong. Alternatively, the submission that we put is that backdating of the minimum mandatory non-parole period for murder is necessarily prohibited by the scheme brought into existence by the amending Act of 2007, that is, section 32(5)(ab) which imposes the minimum mandatory non-parole period for the offence of murder of 20 years and section 32A which then control the extent to which, if at all, that minimum non-parole period can be alleviated.

The result of those submissions is that in the circumstances of this case and given therefore the clear prospect of double punishment should there be a trial and a conviction.

FRENCH CJ: You used the term “alleviate”. By that you mean fixing a non-parole period shorter than the prescribed period?

MR WELLS: Yes, your Honour.

FRENCH CJ: There is a distinction being drawn between that and the concept of backdating, is there?

MR WELLS: Yes. Our submission will identify the way in which the distinction cannot be maintained.

HAYNE J: Now, central to both branches of the argument is the assertion that there will be double punishment, can you identify what is the overlap in punishment of which you complain?

MR WELLS: Yes, your Honour. The applicant, as a result of the events that occurred on 24 September 2002 was charged with two offences, attempted murder and wounding with intent to cause grievous bodily harm and was convicted - - -

HAYNE J: I understand the background, I understand that he was sentenced for the assault, but where lies the overlap? What is the doubling up of punishment to which you point?

MR WELLS: Your Honour, we identify, therefore, following the principles enunciated in Pearce, the elements of each offence. The elements for wounding with intent to cause grievous bodily harm are identified in that description and it is in respect of those elements that the applicant received a sentence of imprisonment of seven years with four years non-parole. The elements of murder include those elements. Once upon a time we would have wanted to argue, and I think it is now not open to us to argue, that in fact the elements of murder entirely encompass the elements of wounding with intent to cause grievous bodily harm.

FRENCH CJ: The concept of wounding is not necessarily an element of murder, is it?

MR WELLS: No.

FRENCH CJ: There are various ways of killing people, apart from breaking their skin.

MR WELLS: Yes. Well, the other example would be poisoning, where there would not be an assault involved, and we acknowledge that, but this is perhaps an argument which - - -

FRENCH CJ: Or even choking someone to death, I suppose.

MR WELLS: Yes, your Honour, although that would still be an assault.

FRENCH CJ: Yes, but assault is not an element of wounding with intent, is it?

MR WELLS: No, it is penetration of the skin, but ordinarily penetration of the skin is the result of an assault.

FRENCH CJ: Well, that may be so.

MR WELLS: We accept that, your Honours, but for our purposes we do not have to stay with the argument of whether for the purposes of a plea in bar that murder entirely encompasses wounding with intent to cause grievous bodily harm, we have to accept that we are past that point now, but all the same there are clearly common elements. For the purposes of punishment - - -

FRENCH CJ: Sorry, can you just specify again, what are the common elements in terms of the definition of the offences as distinct from the accident of this particular case?

MR WELLS: As with all criminal offences, there is the act and then there is the state of mind. There is clearly here a common element in the state of mind. The reason for that is that the applicant has been acquitted of the charge of attempted murder. It is not now possible, even if there were any retrial, for the Crown to put a case that relied upon an intention to kill.

FRENCH CJ: So the first common element is intent to cause grievous bodily harm?

MR WELLS: Yes, that is right. The second common element, which in our respectful submission does come into play for the purpose of sentencing is the actus reus. In terms of, if you like, the generic elements, it is not necessarily the case that they have to be common and that is accepted. The ordinary formulation of murder would be simply an unlawful killing with the requisite state of mind, and for wounding it would ordinarily be an act which involves a breaking of the skin.

HAYNE J: But both branches of your argument focus upon the minimum term and the way in which – or the non-parole period, is that right?

MR WELLS: That is right.

HAYNE J: It is said that there is double punishment because of the way the Act, as it now stands, obliges the Court to deal with non-parole periods, is that right?

MR WELLS: Yes.

HAYNE J: What I do not understand is what it is about fixing a minimum term, fixing a non-parole period, that engages the notion of double punishment. I understand your answer thus far to look at elements of the offence and say, “Well, there are common elements, therefore”, but the argument you begin with begins from the minimum term and what I do not understand is where in the minimum term notion and the way it is engaged in these cases there is an element of double punishment. Can I just take the point a further stage so that you know where the argument is going?

MR WELLS: Certainly.

HAYNE J: The sentence to be imposed for murder is not sufficiently identified by describing the minimum term provisions.

MR WELLS: No, we agree with that.

HAYNE J: The sentence for murder must take account of the fact that there is a mandatory life term, must it not?

MR WELLS: We agree with that.

HAYNE J: Now, you fasten on one element of punishment. You say, “therefore double punishment”, you identify common elements, but I do not yet follow the train of reasoning more precisely than that, and what am I missing?

MR WELLS: Can I make two points, your Honour? The first might be a bit by the way but it is worthwhile clearing it. We do not concentrate our argument simply and solely on non-parole period. We accept that there is a mandatory head sentence of life imprisonment. Our submission is that in fact a life sentence can never be backdated. A life sentence is for the rest of one’s life, and there is, therefore, an initial incongruity anyway in the notion of backdating a non-parole period for a sentence which can only operate prospectively. But putting that aside for the moment, because that perhaps arises at a later stage, the operation of the Criminal Law Consolidation Act - - -

GUMMOW J: Is it section 11?

MR WELLS: Section 11, your Honour.

GUMMOW J: What does that say? I am not sure we have the text.

MR WELLS: I beg your pardon. Your Honours, I think it is in footnote 8 of our outline, your Honour, but I think - - -

GUMMOW J: Thank you, footnote 8?

MR WELLS: Footnote 7 I am told.

“Any person who commits murder shall be guilty of an offence and shall be imprisoned for life.”

GUMMOW J: So it is common law, pure common law.

MR WELLS: Yes it is. Except in the case of felony murder which has attracted a particular statutory provision. I will come back to that. That is section 11. Then there is the Criminal Law (Sentencing) Act, which I will refer to as the Sentencing Act, which in section 32(5)(ab) prescribes the mandatory minimum non-parole period. Then one must then turn to the Correctional Services Act 1981 which deals with non-parole periods and - - -

GUMMOW J: It is in the book?

MR WELLS: In our own written submissions, your Honours, which is in a booklet form we have behind tab 4 included provisions of the Correctional Services Act and in particular - - -

FRENCH CJ: This goes up as a recommendation to the governor once the minimum period has elapsed does it?

MR WELLS: Yes, your Honour.

FRENCH CJ: It effectively means to the Minister, does it not?

MR WELLS: Yes, Cabinet, as our experience in this State suggests. It becomes a consideration of Cabinet and then a recommendation from Executive Council. But your Honours will see in section 67, which deals with the release on parole by application to the board, there is a special provision for a prisoner who is serving a sentence of life imprisonment and that is section 67(6) and, as your Honour the Chief Justice has said, it results in a recommendation to the Governor, that is, if there is to be parole – perhaps I should say that Correctional Services Act itself defines “non-parole period” as meaning “a period during which a prisoner may not be released on parole” – and the recommendation to the Governor where there is a recommendation for release is for release on parole for

a period of not less than 3 years or more than 10 years for which the prisoner should continue on parole

That is subsection (6)(a)(ii). It is for the Governor to determine on advice whether the recommendation should be accepted. If it is, then there is a further provision that deals with the consequences of release on parole of a person serving a term of life imprisonment and that is section 70 of the same Act which provides relevantly for our purposes that

(1) A prisoner serving a sentence of life imprisonment who is released on parole will, unless the release is cancelled or suspended, or the sentence is extinguished, remain on parole . . .

(b) in any other case – for the period recommended by the Board and approved by the Governor -

(2) On the expiry of the parole of a person pursuant to subsection (1), the sentence of imprisonment will, subject to this Part, be taken to have been wholly satisfied.

FRENCH CJ: So they do not have to stay on parole for the rest of their life?

MR WELLS: That is correct, because the parole period is a maximum of 10 years. So by this process, the prospective life term, mandatory though it may be, from the point of view of the prisoner, can become something less than life and the period of non-parole therefore becomes somewhat important because at the expiry of the non-parole period, whenever it would be, there is the opportunity to apply for parole in the terms of section 67 and section 70 and the result - - -

FRENCH CJ: So the 10 year maximum on parole applies to life prisoners as well as others, does it? There is not a separate head of power to fix a time under 70(1)(b)?

MR WELLS: For 10 years, no, your Honour. It is section 67(6) which governs that and in paragraph (a), if the board so recommends – that is, recommends parole, “the board must recommend” - - -

FRENCH CJ: I am sorry, yes, that covers specifically the life term.

MR WELLS: Yes. That is a special provision for someone serving a term of life imprisonment. Now, I am not sure whether I am directly engaging with your Honour Justice Hayne’s question in that respect, but the answer that we proffer to it is that our case does accept and acknowledge the head sentence and its operation but it founds on the significance of the non-parole period and, therefore, the intention of the legislature in setting a minimum mandatory non-parole period as requiring a definite period of imprisonment before there can there be any question of applying for parole. So particularly when one then goes back to section 30, which deals with the linkage between the head sentence and the non-parole period, it is ordinarily the case that the non-parole period will be taken to commence upon the commencement of the head sentence. That is, there is no separation between the commencement of the head sentence and the commencement of the non-parole period, which I think takes me back, your Honours, to identifying again the question that has first been raised with me, and that is, what are the common elements.

CRENNAN J: Well, the related question, what is the double punishment? Identify that?

MR WELLS: Yes. So the double punishment comes about because what the applicant in this case has already served – we are not looking ahead in that respect and that is what makes this case somewhat unusual. As I stand here today, the applicant has served in prison just over six of the seven years that he was sentenced to, has not been released on parole, and the parole board has in fact adjourned consideration of his parole application until the murder charge has been dealt with. So he has served seven years for the conduct which is identified in the wounding with intent and then he stands to be sentenced to life imprisonment prospectively with a minimum non-parole period, unless it comes within the exceptions, of 20 years for the - - -

HAYNE J: If the sentencing court chooses to fix a non-parole period.

MR WELLS: Yes, that is accepted, your Honour, but in this case our respectful submission is that there is no question but that a non-parole period would be fixed in this case. I think it is accepted on all hands that if the mandatory non-parole period were not here, a non-parole period of less than 20 years would be fixed.

HAYNE J: Well, that invites attention to what the purpose of a non-parole period is. Do you accept that a non-parole period is to be fixed in accordance with the principles discussed in Bugmy [1990] HCA 18; 169 CLR 525, particularly at 538, as being the period before the expiration of which release of the offender would, it is there said in the estimation of the sentencing judge, be in violation of justice according to law. And here there is a legislative judgment made, is there not, that 20 years in any case of murder, absent the very special circumstances, and a limited range of special circumstances statutorily identified, 20 years is that minimum term, is it not?

MR WELLS: Your Honour, one cannot quibble with any part of what your Honour has put so far as it goes, with respect, but the additional factor here is that the applicant has already served six and probably will serve seven years of a sentence which has been passed upon him for the same conduct, exactly the same conduct. The only difference between the conduct for which he was sentenced by Justice Mulligan in August 2003 and the conduct which amounts to murder is the course of events which are alleged to have proceeded from that conduct, namely, that the conduct ultimately caused the death of the victim. Now, I say “only”. I do not by that diminish the seriousness of that consequence. What I mean to say, though, is that that has been set on its course already by the conduct which was completed so far as the applicant was concerned in that incident on 24 September, an incident which constituted the circumstances for which he was sentenced for wounding with intent and will also constitute the circumstances in which he would be dealt with on the charge of murder.

So the result, we respectfully submit, is picking up on the principles to be derived from Pearce that what the applicant now stands to be punished for is the same act, the same conduct. Of course there is the additional and serious feature element of cause of death which is still, of course, at large as a matter alleged, but that apart there is a complete identity in the conduct, and our respectful submission is that it cannot but be concluded that if he were now to be sentenced he would be sentenced having regard to that conduct. Now, a lot of it as it were has been hammered in place by the statute.

CRENNAN J: Do you accept that if it is possible to backdate the non-parole period to the date when the accused was first taken into custody the whole problem of double punishment goes away?

MR WELLS: We do not, your Honour, we do not. Our respectful submission is that the effect of backdating is the same effect as concurrency and Pearce’s Case stands for the proposition, we submit, that concurrency in a sentence does not sufficiently alleviate double punishment.

KIEFEL J: Does it really say that or is Pearce really about a method by which sentencing should be undertaken? It had the unusual position there that it was exactly the same conduct for the two offences.

MR WELLS: No, our respectful submission is that Pearce stands for a more profound proposition than that, your Honour.

KIEFEL J: Does it stand for more than that a trial judge is required to determine the appropriate sentence for each offence and then proceed to consider concurrency, accumulation and totality? That is the method that it was concerned with?

MR WELLS: We submit not. We submit that there is a further matter in what your Honour has elicited. It would proceed in this way and this is what we say Pearce stands for, that a person is to be sentenced so that the punishment for each offence of which he or she is convicted is a punishment that fits the crime. That is the first consideration and I am approaching it in this way simply for analytical reasons, your Honour. I am not suggesting that this is a staged approach, it is simply a method of analysis. The punishment for each offence must fit the crime. To that extent the sentencing judge addresses each offence and fixes the appropriate punishment, and I will not stay to deal with that in terms of head sentence and non-parole period, we will just say the appropriate punishment.

It is then necessary to ensure, having done that, if there are common elements in the two offences that an adjustment is made to one or either or both of the proposed sentences to ensure that there is not double punishment. It is then a question of considering, whether having regard to the nature of the criminal transaction or transactions, it is appropriate that the sentences be served concurrently or cumulatively. That is all subject to, as it were, an overriding telescopic view of what has been done to give effect to the totality principle.

FRENCH CJ: Where, of course, you have a mandatory sentence of life imprisonment and where you have a mandatory minimum period for parole the area of choice for the charge in determining the appropriate head sentence and combination in respect of the murder does not exist, subject to either not fixing a parole period or fixing a longer parole minimum, I suppose. So there is a degree of artificiality about just bringing in the general principle in Pearce into this circumstance, is there not, where a judge is subject to a direction as to what has to be imposed?

MR WELLS: Your Honour, I would want to make clear one thing and that is we are not addressing in this case and in this submission the operation simply of, if you like, mandatory sentences. What we are addressing here is in the circumstances the consequences of mandatory sentences and a mandatory non-parole period in circumstances where there has already been a sentence of imprisonment served. So we are identifying as a particular circumstance here clearly, if you like, the double punishment aspect.

Coming back to what your Honour puts, what we say is that in these circumstances the circumstances and the application of the legislation means that the adjustment that Pearce required cannot be made and it cannot be, as it were, compensated for by simply trying to embrace a form of concurrency because double punishment – and this is again one of the lasting lessons from Pearce – is not alleviated or, I should say, not sufficiently alleviated by concurrency.

FRENCH CJ: Why is not the answer to that simply this, that the statute only leaves you with the possibility of backdating and if that leaves a principle of double punishment in place, that is a consequence of the statute?

MR WELLS: Your Honour, a choice has to be made, in our respectful submission.

FRENCH CJ: You are saying it is an abuse of process issue?

MR WELLS: Yes, that is what we are saying, that it is not sufficient. Can I take an example. I think the decision in New South Wales was GJE. I cannot give your Honours a reference. I think it is unreported but I will undertake to do so. It went to this Court on special leave and special leave was refused. It involved this, that there is a provision in New South Wales which limits the extent to which counsel in a sexual case can cross-examine the complainant. The trial judge took the view that that so far deprived the accused of the right to confront witnesses and therefore so far deprived the accused of a right to a fair trial that it would be an abuse of process to allow it to proceed and the trial judge ordered a stay. That was overturned by the Court of Appeal and, as I say, special leave to appeal was refused.

That is what we would call a case of – without meaning disrespect to the Parliament – institutional abuse of process. It was required by the legislation. It was not a matter of identifying in the particular circumstances events which could be identified as a situational abuse. It was brought about by the command of the Parliament and the court - - -

KIEFEL J: But is there not a difficulty in the notion of an abuse of process in an effect of sentencing? I had understood that is why you had curved your argument around to deal with that, to place the notion of something going wrong in the process to be undertaken to focus upon the position of the accused in pleading. So, it is not a sentencing effect that you have to look to make out your abuse of process. It is purely the effect upon the accused, is it not?

MR WELLS: Your Honour, it depends on which route we are travelling. Your Honour will recall that I have put up two routes which both - - -

KIEFEL J: But you cannot have them running in a parallel which is what you are doing, I think.

MR WELLS: No, with respect. The route that I am on at the moment is the route that says – and it has, as it were, got less steps to it. This is a case where the circumstances, namely, the earlier sentencing, have resulted in an application, because the DPP has proceeded with the charge, of the legislation which identifies in the director’s decision to proceed an abuse of process. The abuse of process in this route is an abuse of process which actually does not focus primarily upon the accused because, as was said in the joint judgment in Pearce, the question how long is not the sole question for double punishment. The question that the prisoner asks how long is not the sole question.

There is another question which we identify, as it were, as the public aspects of sentencing which are concerned with such principles and considerations as vindicating by the sentence that is imposed the values of a community which the community has asked the court to uphold, the denouncing, which is the word that we choose to use, on the part of the community of the conduct of a particular accused, not only as having an effect on the accused but also as having an effect for the community, signifying the community’s disapproval, as it were.

So questions of denunciation, questions of vindication of values are as much a part of the sentencing process as the impact on the life of the person being sentenced. When one considers the route that I am presently travelling down, what we concentrate upon is not just the how long, but the importance from the point of view of community values of the court being able to say this is the appropriate sentence for this conduct because it is sending these messages and making these declarations both of vindication of values and of denunciation.

If one identifies therefore in the process of sentencing what we call the public aspects as well as the personal aspects – those personal to the accused – then, in our respectful submission, the line that we are presently travelling along must, we submit, because of the sentence already served and because of the director’s insistence on prosecuting this charge, result in an inevitable miscarriage of justice should this matter go to trial.

A formal plea of not guilty would initiate, on this view of the matter, an inevitable miscarriage of justice because, short of an acquittal, if there were to be a conviction, the sentencing judge would have no relevant discretion. The sentencing judge, even if the sentencing judge had a power to backdate, would not be able to alleviate the double punishment which would result from condemning this applicant to imprisonment for the same conduct for which he has already been imprisoned, as I say, for almost seven years.

HAYNE J: Do you seek to have us qualify in any respect what is said in Pearce at paragraph 40 of the reasons in Pearce 194 CLR 610, particularly 623?

CRENNAN J: I would be particularly interested in your answer in relation to the second sentence.

MR WELLS: Would your Honours pardon me for a moment. Your Honours, we do not resile, or at least invite the Court to modify anything in that paragraph.

HAYNE J: But the second sentence is the knife in the napkin, is not it, Mr Wells? It really is. It has to yield to contrary legislative intention.

MR WELLS: We do not submit, your Honour, that there is any contrary legislative intention here. There is not the slightest indication, your Honours, that the legislative scheme in this case even had in contemplation the circumstances that have presented themselves in this case.

HAYNE J: It has not been uncommon in Australia, has it, particularly since the abolition of the year and a day rule, to have people convicted of an assault and later prosecuted for the murder of the victim?

MR WELLS: Your Honour, I do not think we could exceed to the proposition that it is not uncommon.

HAYNE J: My impression may be quite wrong then.

MR WELLS: It would be unusual and, indeed, I stand to be corrected, but my learned friend might be in a better position to say, but I am not aware of any case in South Australia since the abolition of the year and a day rule in the early nineties, 1991, where the circumstances that we are confronted with here have occurred, given a non-parole period or not, one of the critical features being here that the applicant has substantially served the sentence for all of the same conduct short of a death. As I am reminded, it was not a small sentence, it was a substantial sentence and he stands now to be sentenced, in effect, as if he had not served any term at all for the conduct which resulted in death.

KIEFEL J: Forgive me, but why would not backdating to the time in which he was taken into custody have the desired effect of overcoming double punishment? Are you really saying that Pearce does not allow any concurrency from this?

MR WELLS: What I am saying, your Honour, is that concurrency does not sufficiently alleviate the double punishment. I do not take my submission as far - - -

KIEFEL J: So that leads you back to the minimum term for non-parole period, is that what you are saying?

MR WELLS: No, your Honour. I am not basing on that at all. If we go back to Pearce itself, which did not involve any mandatory non-parole periods, the concern was expressed and, indeed, the court acted on this proposition, that although the two sentences that have been passed were to be served concurrently and they were for the same length of time, both offences attracted a sentence of 12 years to be served concurrently, and it was said that that still had the sentencing error in that case, because no term of imprisonment had in fact been served sufficiently, had the error of double punishment even though they were concurrent.

KIEFEL J: But Pearce, if I understand what you are saying, did not say that concurrency cannot alleviate the double punishment. I thought what Pearce said was that in that particular case the concurrent terms may have disguised the error which was that consideration was not given to an appropriate term for each offence. I did not understand Pearce to say any more than that about whether concurrency was possible.

MR WELLS: Your Honour, with respect, has expressed it in terms of consideration not given to the appropriate term of imprisonment. Our respectful submission is that in Pearce that was expressed in terms of double punishment, that is, what had been a sentence was inappropriate because it failed to take account of and to make adjustment for common elements for which the accused had been sentenced in relation to both offences. So one cannot divorce the notion of inappropriate sentence from the particular flaw as it was identified by this Court which was common elements not accounted for and adjusted notwithstanding concurrent sentences.

KIEFEL J: But the big difference must surely be, I think what the Chief Justice pointed out to you just before, and that is that in this case the head sentence for murder and also the minimum non-parole period are prescribed by statute so that the sentencing judge does not have any flexibility, if you like, in relation to those two matters.

MR WELLS: And therefore there should not - - -

KIEFEL J: And perhaps the only option is the shortening of the non-parole period provided backdating is allowed. So you have really got a very different set of circumstances from those which prevailed in Pearce’s Case, because of the statutory requirements, as the Chief Justice pointed out.

MR WELLS: Our respectful submission, your Honour – and this takes me back to the case of GJE – is that we are not here talking about a legislative prescription. We are talking here about a decision to prosecute in circumstances where the law as a result would produce an oppressive, vexatious and unjust result. Now, the distinction between this case and GJE lies in this, that in the case of GJE the provision which prohibited cross-examination of the complainant as to past history applies in all cases. The effect of the decision of the trial judge, in effect, was to say nobody can prosecute for a sexual offence where what would be involved would be a confrontation of the complainant with respect to past history.

HAYNE J: If your submissions are right, could there ever be a prosecution for murder after the accused person has been convicted of assaulting the victim? I think the answer must be there could not, but is that so?

MR WELLS: Your Honour, I think bar only the exceptions in section 32A which would remove the mandatory non-parole period.

HAYNE J: But even there, if a person has been charged with assaulting the victim, convicted and sentenced whether to imprisonment or to some other form of punishment, are not the consequences that you say obtain in this case consequences that would follow in any case if that offender were later to be prosecuted for the murder? The offender would be subject to the outcomes prescribed by the statute, you would say, punishing him or her twice for the element of the offence which you say is constituted by the assault with murderous intent.

MR WELLS: Bar a consideration, your Honour, of the extent of the earlier punishment and that is whether as a matter of degree it would be regarded as sufficiently intrusive to attract the double punishment principle, the consequence would be as we have contended.

GUMMOW J: This double punishment principle is a bit mysterious, really, is it not? We are not in the realm of pleas in bar. That has gone, has it not? We are not yet and may never be, but we are not yet at the stage of “double punishment” as a “sentencing” consideration. We are in the third area, which is abuse of process founding a stay of prosecution. What is the content of the motion of abuse of process in that setting beyond pleas in bar? In other words, why do you bother about pleas in bar? Why are they not absorbed within notions of abuse of process with an extra difference – an add-on if you like – between the pleas and the rest of abuse of process? It is very hard to find a footing on which to start to consider these principle questions, it seems to me.

MR WELLS: Your Honour’s reasons in Pearce, which I think have been reflected in some other judgments in this Court, identify that double punishment is an aspect of the precept principle or value of double jeopardy. That precept finds expression in various rules and at various stages of the criminal process, put aside for the moment the civil process.

GUMMOW J: In South Australia, and we are in the Supreme Court, are we not, this comes out of the inherent powers of the Supreme Court, does it not under this constituent legislation?

MR WELLS: Yes, it does.

GUMMOW J: What is the impact upon that notion of abuse of process of a specific statutory regime to which reference has been made this morning – the recent specific statutory regime? At the end of the day it may be a question of looking at two statutes, actually, informed by these nebulous but significant notions of double punishment.

MR WELLS: Your Honour when speaking of two statutes, referring to, on the one hand - - -

GUMMOW J: The Supreme Court Act.

MR WELLS: Section 17 of the Supreme Court Act which confers the jurisdiction of the Supreme Court and these sentencing provisions.

GUMMOW J: Yes.

MR WELLS: Then determining, effectively, which is to have paramountcy.

GUMMOW J: Or how they work together?

MR WELLS: Yes.

GUMMOW J: You want to work them together in a particular way?

MR WELLS: We do, your Honour, and we claim this advantage that the particular dilemma that has arisen in this case is not exposed by the amending Act as a dilemma intended to be created. What is intended to be created is – if your Honours will pardon the phrase – a law and order approach which reduces to an extent, but only to an extent, a sentencing discretion and generally speaking seeks to increase penalties for crime, but that identified and revealed legislative intent cannot be, we submit, identified as intention to secure the double punishment of someone in the applicant’s case.

GUMMOW J: I am not saying this adversely to you but maybe it comes down to your construing the legislation with a greater weight to common law values, to put it that way, of double punishment – avoidance of double punishment – than the Solicitor-General would have us.

MR WELLS: Indeed, your Honour, and what we contend is that that is an accommodation which is available not only because we can identify the legislative intent and state, we submit with some confidence, that this would appear to be an unintended consequence of what those amending provisions provided for. Not only we can say that, but we can also say, your Honours, that this is not what I have called an inevitable result of the legislation alone.

FRENCH CJ: Just exploring that question of abuse of process which I think we need to focus on, one has the analogy in the civil jurisdictions of – you have got your res judicata issue, estoppel, Anshun estoppel and this broader concept of abuse of process which might embrace things like litigation brought for some sort of collateral purpose or effectively re-litigating something which has been litigated somewhere else, even if there is not a res judicata or estoppel generated by it. Here, your equivalents are the pleas in bar.

We are out of that territory, as Mr Justice Gummow said. So, accepting that the concept of abuse of process has to allow for the varieties of human perversity, what sort of principle informs your characterisation of the initiation of this prosecution as an abuse of process? You are not saying it is an improper purpose, you are really talking – so far you seem to be doing it by reference to the necessary consequences of the prosecution in the event that the accused were to be found guilty.

MR WELLS: Yes, the inevitable consequences.

GUMMOW J: The inevitable legislative consequences.

MR WELLS: The inevitable consequences of this case going forward in the legislative framework that has been set up and I express that in order to draw a distinction, your Honour.

CRENNAN J: Well, you have framed it, I think, have you, but correct me if I am wrong, that the legislation is such that there is an improper pressure on the accused to plead a particular way in order to avoid this inevitable prospect of double punishment?

MR WELLS: Yes.

CRENNAN J: That is the precise abuse of process, as I understand it.

MR WELLS: Your Honour, for me to respond to that carefully I should say this, that the abuse that we identify is a different abuse depending upon the road that we are travelling. The abuse that your Honour identifies we certainly are found on, and it is set out in some detail in our written submissions, but that really is the consequence of the other road, that is, the road that says there is no power to backdate. So that what then this accused, this applicant, is confronted with is a clear prospect of additional time being spent, that is, on top of what he has spent already, with no concurrency between them at all.

For the applicant that does raise the cry, “how long”, and the answer that is given there is, well, it is this long if you plead not guilty and it will in every probability be much less if you plead guilty. That is the pressure that we identify as constituting an abuse. We do not say that the legislature has not had, as it were, a contributing part in that; it must, because that is the legislative framework. But the abuse is the abuse, in the formal sense, of the director in prosecuting, given that legislative framework and given therefore the improper pressure that will result and will be brought about on the applicant.

Now that, your Honour, is the free choice basis of abuse of process which we are found on if there is no backdating available. If backdating is available, then we are faced with this, that from the point of view, that is, from the personal aspects of sentencing, of the applicant, the applicant’s cry “how long” becomes muted because of the concurrency that results from backdating. But, as Pearce says, certainly from the point of view of a proper sentencing principle, the how long is not all there is, and that takes me back to what I have said before about the public aspects of sentencing; vindication and denunciation.

That is not, probably, not going to have a great impact on a particular applicant. Some accused people may feel very concerned about the extent to which they are denounced by the community; others will not. They will all feel concerned about how long they are going to spend inside. So the nature of the abuse in the road that we are travelling where we assume backdating is a different kind of abuse from the free choice issue that we have contended for. The nature of the abuse that we identify there, your Honours, is that the court can now see, ahead of time, an inevitable miscarriage of justice provoked by a not guilty plea, in that when the not guilty plea is entered and the trial is embarked upon, save for the question of acquittal, there is no going back.

The judge cannot do anything about the result of a conviction. The judge is placed in the position of having then to impose the mandatory life sentence and having then to impose the mandatory minimum non-parole period of 20 years without any ability to adjust for time already spent, seven years, or more by then, for the same conduct. So it is the inevitability of the course set which we then identify as the abuse of process.

If your Honour were to take up for a moment our outline, we give expression to that in paragraph 34. We give some references in the footnote, footnote 39, to cases which are I think with one exception or perhaps two exceptions, sentencing cases but the two exceptions are the Victorian cases of R v GJB. It is not in the bundle, your Honours, but there the President identified the case where it was proposed that the District Court judge actually impose a sentence on the appellant in relation to a second offence there as being an abuse of process and requiring intervention. We give a reference to paragraph 19 of R v GJB, where the President made that point, the same point being made by Justice Redlich in the other Victorian case of Neill v County Court of Victoria.

There is a sense in which we have to accept that the kind of abuse of process that we are contending for here is novel in the sense that it is not often referred to and it is tied up with a sentencing process which we say here can now be seen to be inevitable but wrong, and wrong because the charge is being pressed in these circumstances. It is not wrong for a charge of murder to be pressed in any circumstance, obviously enough; it is because of what has happened here where, unusually – and this is the unusual aspect of it, with respect – where we stand at the moment the applicant has almost completed a substantial sentence for the conduct in respect of which he is now charged with murder.

That, I might add, does not raise any issue or conflict with the murder exception cases. Your Honours will know that there is a series of cases which - - -

GUMMOW J: They were referred to in the first stay application in the Court of Criminal Appeal.

MR WELLS: They were, yes, your Honour. And they were the subject of debate then, but they were the cases that Thomas and Morris and Friel – were cases where there had been initial conviction and sentence for common assault or something of that kind, and then the victim had died, presumably within the year and a day, and there was then a charge of murder. The issue that was raised there was a plea in bar issue. But, of course, the rulings that were given in each case, which were supported in Connolly’s Case, Connolly v DPP in the House of Lords, particularly in the speech of Lord Morris of Borth-Y-Gest, where all of those cases were canvassed. The result, of course, was that the charge of murder was not barred.

One of the implications from that, it might be said, was, well, that means that those courts contemplated double punishment. It was inevitable that, if on the charge of murder the accused were found guilty – in those days it would be the extreme form of punishment – and no doubt that is one of the reasons why the murder exceptions were there, was, as it were, the charge of murder being a capital offence so overwhelmed anything that had happened before that it stood on its own. But this Court in Pearce has set that matter right and has put it on a different basis.

The paragraph in which that has been done is paragraph 34 in Pearce where in the joint judgment their Honours identified two conflicting formulations of the principle, one deriving from R v Hoar, it is:

a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act.

Contrasting with the English cases, in particular the murder exception cases of which Thomas is one, where on the contrary it was said that the law was that a person was not liable to be punished twice for the same offence. Pearce’s Case opted for the Hoar formulation. One can see that very clearly in paragraphs 40 and following, all the way through to paragraph 49 of that joint judgment.

HAYNE J: The first sentence in paragraph 41 is not unimportant, is it?

MR WELLS: There is a third position, your Honour, from identifying good sentencing practice or positive rule of law and that is again to identify what we are now talking about as a precept or principle and clearly a guiding and controlling precept or principle. But we respectfully submit that what comes clearly out of Pearce is a choice for the Hoar formulation which concentrates on the conduct or the Act and not on the offence. The result of that, amongst of things, is that there is no basis beyond what Pearce has said for our propositions to be reformulated having regard to the murder cases. They all proceeded pretty well on the basis that what was not to be punished twice was the same offence rather than the same Act.

FRENCH CJ: In Pearce the common act, the infliction of grievous bodily harm, was also a common element in the definition of the offences. Does it matter that that is not the same here? I mean, the act in respect of which the applicant was convicted was the wounding with intent to inflict grievous bodily harm. It was not the infliction of grievous bodily harm, it was the intent. The breaking of the skin was enough coupled with the intent. So those elements are different, are they not, from the elements of unlawful killing in the context of killing somebody with an intent to commit grievous bodily harm? The only common element is the intent. Can one equate the act and the element in the same way as you could in Pearce?

MR WELLS: It is not necessary to, your Honour. When we are talking about questions of double punishment as distinct from pleas in bar where elemental considerations arise and are very much to the forefront, when we are talking about punishment, then it is not necessary to stay to the formality of the strict elements of the offence. What is being punished is the act. What is being punished in the end is the particular circumstances, however they might be, which constitute those elements. So when one comes to consider double punishment, our respectful submission is that staying with the generic elements is not required and, indeed, because we are talking about double punishment, the reverse is required. One is really looking at not just the generic act, but the act for which one is punished, whatever that may be and that becomes very stark, we submit, in this case.

CRENNAN J: Why does not backdating to the date of first being taken into custody obviate the Pearce problems totally? I must be missing something because I cannot understand – you did say that in relation to this, the “how long” becomes very muted. Already there has been a stay application, the end result of which it has been found not to be an abuse of process for the DPP to bring a prosecution in circumstances where there was the previous conviction for assault and this murder prosecution is subject to that. That was the subject matter, as I understand it, of the first stay in relation to which special leave to appeal was not granted. So the point on this application is a very narrow one. It is contended that it is an abusive process for the DPP to proceed in relation to this prosecution for murder because of the potentiality for double punishment?

MR WELLS: Yes.

CRENNAN J: You have not accepted, when I have asked you, that if there could be backdating to the date of first being taken into custody, you have not accepted that that backdating of the minimum non-parole period would not solve what I will call the Pearce problem. That is what I cannot quite follow.

MR WELLS: Your Honour, can I answer your question in two parts, first of all as to the previous stay application. The submission that was put there was really related to plea in bar. Now, your Honour is quite right in saying that actually it was not decided in the end on whether there was a plea in bar. In part, I accept responsibility for that because we made the strategic decision to argue it as an abuse of process rather than a strict plea in bar, but it was directed towards the elements of the offence. It was directed towards the principles of abuse analogous to a plea in bar, the general proposition being that Pearce is, as it were, pulled back and clarified and cleared up the reach of the strict plea in bar and that leaves a certain field open for the inherent jurisdiction to work in and that is where we were digging and delving.

That was put aside but it was not focused upon the abuse we are talking about here which has arisen by reason of a new legislative framework that arose after that. It is true that the legislation came into effect the same month that special leave was being sought on the first stay in this Court. That is the coincidence.

CRENNAN J: So the double punishment, if there is backdating back to the date of first being taken into custody, arises how?

MR WELLS: Can I take your Honour to Pearce?

CRENNAN J: Yes, certainly.

MR WELLS: I do not seek to read more than a small part, but I have taken the Court to paragraph 34. The discussion proper starts at paragraph 40 to which we have already been and a discussion therefore includes in paragraph 42 the proposition:

It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward.

I would want to emphasise that too in support of my response to your Honour the Chief Justice about the elemental approach. Then paragraph 43, the last sentence:

Prima facie, then, he was doubly punished for the one act.

Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

Which is exactly in parallel to the question your Honour asks. Answer:

To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulate or concurrence, as well, of course, as questions of totality.

To which, your Honours, I would add by reference to what is subsequently said in the paragraphs that follow, that when the joint judgment says in that paragraph:

must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence –

must fix an appropriate sentence for each offence adjusted to take account of the common elements or common features of the offence and then consider questions of concurrency. The purpose of concurrency and cumulation is not directed towards avoiding double punishment. It is directed towards identifying whether the overall punishment applying, if you like, as well the totality principle should be identified as being in relation to one criminal transaction or more than one criminal transaction and which of those will determine, to some extent, whether the sentences should be served concurrently or cumulatively, but the double punishment aspect is not catered for and it is not the purpose of concurrency to deal with double punishment.

Double punishment is dealt with by the length of the sentence of imprisonment that is imposed, not the period of imprisonment that is served. The period of imprisonment that is served is the how long question. The length of imprisonment imposed is the double punishment question and that is why it links, in our respectful submission, with the public aspects of punishment, what the community requires.

CRENNAN J: But that is where shortening the minimum non-parole period gives a recognition for the common elements.

MR WELLS: If we could do it, your Honour, but the difficulty - - -

CRENNAN J: My questions have always been predicated on assuming backdating is available.

MR WELLS: Backdating, but, your Honour, with respect, that is not shortening the punishment. That is adjusting - - -

CRENNAN J: Well, if you take a minimum non-parole period as part of the punishment, I think one would have to accept that.

MR WELLS: It shortens the period served, your Honour. It does not, however, address at all the public aspect of double punishment. All it does is to answer the question, how long?

CRENNAN J: Is it not just the opposite side of the coin where someone is doing a life sentence for murder, commits an assault in gaol. It is not an abuse of process to prosecute for that assault; it is obviously a discrete criminal act. The fact that there is a life sentence in terms of the public aspects raises a query about whether there is no punishment for the subsequent assault because the person has already been sentenced to a life sentence of imprisonment. There is no problem in that sort of circumstance if the statute so provides to extend a non-parole period to reflect the fact that you are sentencing in relation to two different - - -

MR WELLS: That is the point though, your Honour. The difference between that and this is that it is a separate offence. It is a separate act; it is not the same.

CRENNAN J: Going back to your argument then, is it not going to apply to any occasion on which there is more than a charge for murder; robbery with violence and murder? Is not the same argument going to be a problem because of the life sentence and the issue of double punishment?

MR WELLS: Your Honour, up to a point, yes, but overall, no. You see, for a start it arises as a sentencing issue at the point of sentencing. We are not dealing with the present issue as an issue of sentencing in the sense that we are not at the sentencing stage.

CRENNAN J: Does that raise a question, by the way, of splitting the trial early; Iorlano and authorities of that kind?

MR WELLS: Splitting the trial, your Honour?

CRENNAN J: Yes. In other words, you could deal with these sentencing issues post-sentence - - -

MR WELLS: You cannot though, your Honour.

CRENNAN J: - - - if you get to that stage.

MR WELLS: This is the problem with this case, your Honour, we cannot; the course is set. Once we go to trial and if there is a conviction, there is no escape. The judge has no discretions. If we are talking about this case, there are no discretions. The exceptions in section 32A which might enable the judge to impose a non-parole period less than 20 years, are not exceptions that arise here at all. The only one that is possible is if my client pleads guilty and that, of course, raises the other issue about unjust pressure. The ordinary course would be that, for a start, it is not normal to prosecute in the one case for an offence in addition to murder.

CRENNAN J: I understand. I was just putting it to you as a hypothetical.

MR WELLS: Well, your Honour, it may be one of the reasons why it is not done and if there is a murder conviction, then the other prosecution is not necessarily proceeded with. In any event, there is an ability to adjust the sentence for the other in order to try to reflect common elements. What is special about this is exactly that, that it is not possible to do any of that now because the sentence has been served. That really takes us to paragraph 49, your Honour, in Pearce’s Case where it says, effectively, even though it might be considered that the overall sentence was “not disproportionate to the criminality”, nevertheless there is a flaw because of double punishment. That, in our respectful submission, points out the very point that concurrency is not the method of alleviating double punishment; concurrency serves a different purpose and that is how we found our case, exactly on that.

Your Honours, what we would say before turning to the second path is that in the Court of Criminal Appeal our respectful submission is the analysis of Justice White was the correct analysis. We will give your Honours reference to the paragraphs and the page in the application book. It is application book 159 to 161, and it is paragraphs 134 to 139. His Honour, in our respectful submission, correctly - - -

GUMMOW J: Just before you develop that, Mr Wells.

MR WELLS: Certainly.

GUMMOW J: Just before you develop that, Mr Wells, in the case of Batistatos [2006] HCA 27; (2006) 226 CLR 256, in the joint judgment we approve what Justice McHugh had said in a criminal case, Rogers 181 CLR 251 at 286. And what Justice McHugh said was:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:

(1) the court’s procedures are invoked for an illegitimate purpose –

I do not think that could be this case.

MR WELLS: No.

GUMMOW J: Three is:

(3) the use of the court’s procedures would bring the administration of justice into disrepute.

That may be difficult for you. Two though is:

(2) the use of the court’s procedures is unjustifiably oppressive to one of the parties.

Can you just explain again what is the unjustifiable oppression? What is the oppression and what is unjustifiable?

MR WELLS: I am grateful to your Honour for the reference. We omitted it but it completes what we have set out in paragraph 36 of our outline, which picks up Justice McHugh’s summary. We there, in paragraph 36 on page 11 of our outline, place some emphasis on the third feature as summarised there, which is the use of the court’s procedures to bring the administration of justice into disrepute. Your Honour, on the submission that I am presently making, which assumes backdating, assumes the power to backdate, a case based on oppression, unjustifiable - - -

GUMMOW J: Wait a minute. It is rather hard to sell to the public the notion of an unpunished murder, is it not? That is why category three must have some difficulties for you.

MR WELLS: Your Honour, to an uninformed public, yes.

KIEFEL J: You mean the public who are not lawyers?

MR WELLS: I am sorry, your Honour?

KIEFEL J: The public who are not lawyers.

MR WELLS: That should not be the basis upon which one makes the determination of principle, however, if the Court pleases. The question is whether, as a matter of good principle and good justice, there is nevertheless reason to stay a murder charge given what has happened and given what otherwise is faced. Now, on the path that I have been travelling down this morning I have said that I do not place the contention of abuse of process first and foremost on unjustifiable oppression of the applicant, for the reason that concurrency may answer the accused’s question “how long?” – that is, period of imprisonment – but it does not answer the question of principle which is raised in Pearce, and that is, what is the appropriate sentence to be imposed – and this is where the public and the community comes in, may it please the Court – and that involves addressing the public purposes of punishment and sentencing.

Our respectful submission is that concurrency does not go any distance towards providing the appropriate public face of the sentence that would be imposed. It would not do so because it does not, consistently with those principles, take account of the doubling up, and that is why in Pearce it consistently was held that simply to say that you can concertina the period served does not answer the question of principle relating to the proper sentence to be imposed, and what would result here would be an improper sentence imposed. The public does not - - -

CRENNAN J: One way of looking at it, just putting Pearce to one side for the minute, is the thought might be a proper sentence to impose here for this murder would be such and such with a minimum non-parole period of 22 years. However, having regard to the prior conviction for assault and the time spent in prison in relation to that, in all of the circumstances the appropriate course is a possible backdating of the non-parole period.

MR WELLS: Your Honour, there are really two issues that your Honour has raised there I think. One is, what is the case where the appropriate non-parole period might be more than 20 years and does that operate differently? The answer to that might be, yes, it might operate differently if, for example, it were the case, let us say, that a proper non-parole period would be 28 years, but the time served in prison in relation to the earlier offence is five. It would be possible, no doubt, to take account of that by reducing the non-parole period because it would still be more than 20 years and it would not fall foul of the minimum. That is not this case and it perhaps points out that it is not going to be in every case that a solution cannot be found and therefore we are not dealing with an institutional abuse.

CRENNAN J: That is where it may be too early, until you have had an exercise of the power to sentence, to say that for the director to proceed is at this stage an abuse of process of the kind you are speaking of.

MR WELLS: Well, your Honour, there is two answers to that. The first is that by the end it will be too late and the second answer is that, I think I am right in saying, it is agreed on all sides that there is no possibility that a non-parole period in this case would be imposed of more than 20 years and if it were possible to impose less, it would be less, considerably less. We are dealing with - - -

GUMMOW J: That follows from which section? Which section would mandate that result? Nothing less than 20 years.

MR WELLS: That is section 32(5)(ab). That is the minimum non-parole period of 20 years and that is then subject to any adjustments up or down that are authorised by section 32A.

GUMMOW J: By 32A, and there would not be one? It cannot be seen that there is likely to be one is that the - - -

MR WELLS: There is certainly no possibility of it being longer than the 20 years and it cannot be less because none of the special reasons exist, short of the plea of guilty. That is the unjustifiable oppression ground, your Honour, and that is the other route to which I am about to turn. Can I just leave this rather rugged path with these references, your Honours. I have taken your Honours to the judgement of Justice White, paragraphs 134 to 139 of the application book at pages 159 to 161. We identify by contrast error in what the other learned judges of the Court of Criminal Appeal had to say, in the case of Justice Duggan at pages 134 to 136 of the application book and, in particular, at paragraph 51, and in the case of Justice Gray in the application book at pages 150 to 151, paragraphs 101 to 105.

I think I should turn, if the Court pleases, to the alternative path. This is the path that denies a power to backdate. This is a path which has some further steps in it. Can I invite the Court to have close at hand the Sentencing Act in its present form and, in particular, section 30.. We can start at section 30. These are the three propositions that we are contending for. The first is that according its terms section 30(2) does not permit backdating in this case. The second proposition is that there is no general discretion to backdate under section 30(1). One is left with the particular powers that are provided for in the following subsections. The third submission is that even if there is a general discretion under subsection (1) to backdate, in the case of murder it is prohibited by section 32(5)(ab), the mandatory non-parole period of 20 years, and section 32A, the prohibition is implied or implicit.

They are the three propositions. The first, your Honours, is a short one and that is to say, well, put aside discretion, is there a power under subsection (2) for backdating because subsection (2) deals with a case where a person has spent time in custody before sentence. It is no doubt true that if we posit a sentence in this case for murder, that the applicant will have spent time in custody. Let us put aside for the moment that it is time in custody in respect of an offence for which he has been sentenced, and the ordinary case – and we would contend that in fact what subsection (2) is considering is where the applicant has spent time in custody in respect only of the offence for which he is subsequently sentenced, namely, murder, and the ordinary case being in custody before trial.

In Victoria that is made explicit by saying, for no other reason, section 18 of the Sentencing Act. Our respectful submission is, quite apart from anything else, it is implicit here that what is being talked about is time spent in custody only in respect of an offence for which the defendant is subsequently sentenced.

HAYNE J: Take the common case of a hotel brawl in which a victim is badly injured and the assailant is taken into custody at once, let it be further assumed that the victim survives for a month or two after the assault, can it said that the assailant has been taken into custody in respect of the offence when he is later charged with and convicted of murder? Why not?

MR WELLS: Your Honour, can I just say, first of all that is not this case.

HAYNE J: I understand that and I want to test it by reference to a not uncommon set of circumstances in homicide.

MR WELLS: Yes. The answer, we respectfully submit, is it is not.

HAYNE J: It would come as a great shock, I think, to the administration of the prison system of this State if the offender’s time served dated only from the first charge of murder, not when they were first arrested for the pub brawl.

MR WELLS: That would be the effect of the section.

HAYNE J: Yes.

MR WELLS: It is clear about that. It is identifying – and, your Honour, we would want to put the submission, albeit it will not have escaped your Honours’ attention, that some of these submissions are in effect slightly counter-cultural coming from an applicant, but nevertheless, the submission we put is that the intent of this legislation is actually to, using the colloquial, introduce a law and order philosophy which is designed to increase time spent in prison, not decrease time spent in prison, and to some extent designed to reduce sentencing discretions.

HAYNE J: Be it so, the expression “in respect of an offence” where used in section 30(2) is an expression that must take account of the fact that the charges preferred by police at the point of arrest are not necessarily the charges which the DPP settles upon at the time of indictment. It would be, I think, awkward to construe section 30(2) by reference only to what appears on a police charge sheet at the point of first entering custody.

MR WELLS: Be it so, your Honour, it would also be not only awkward but contrary to the text of the statute to go so far as to interpret subsection (2) as referring to time spent in custody in respect of a criminal transaction out of which has arisen the offence for which he is ultimately sentenced.

FRENCH CJ: It depends how much wiggle room “in respect of” gives you, does it not?

MR WELLS: It does, your Honour. For our purposes, ultimately it will be not necessary to make a final decision about that. I accept that “in respect of” has a certain area of choice about it which might have to be determined, but it does not affect this case, in our respectful submission, because on any view our submission is it would not fall within it. If your Honours were, for example, to – perhaps I could just mention this? First of all, there are several periods that we are talking about. The applicant was taken into custody two days after the brawl which resulted in the offence, and he was in custody on charges that resulted in his being convicted for assault – wounding with intent almost a year later. He was then sent to prison and his time in prison was then in serving a sentence which had been imposed upon him. So at the very least, that period could not be seen as answering to subsection (2), in our respectful submission, and for the reasons that we have advanced nor could that first period.

If your Honours contrast it with the default subsection in section 30, subsection (6), where it says, “If . . . the Court fails to specify the date” of commencement then the subsection does it for the Court. Your Honours will see that in paragraph (b) what is provided is:

the sentence –

(b) will, in the case of a defendant already in custody for the offence –

that is the offence for which he is sentenced –

be taken to have commenced on the day on which the defendant was last so taken into custody; or

(c) will, in the case of a defendant in custody for some other offence commence on the day on which the sentence is imposed.

So internal indicators suggest that subsection (2) means what it says; and that certainly for the case at bar subsection (2) does not provide a basis for backdating the non-parole period. So the question is, is the decision of the Court of Criminal Appeal in Colson correct when, as it held, it said that section 30(1) confers a general discretion to backdate. Our respectful submission is that Colson is wrong in that respect.

GUMMOW J: Subsection (1) is not expressed permissibly, is it?

MR WELLS: It is a duty. It is a duty which is directed to another issue altogether, your Honour, which is specifying the date of commencement of a sentence. Whenever that might be, whether it is as the result of exercising the powers under subsections (2) and following, or whether it is not, it comes against this background, that up until section 30(1) the antecedent legislation had recognised the common law position, which was – and this is not a matter of judicial power, this is simply the common law rule, that a sentence imposed is taken to have commenced from the first day of the sittings in which the conviction is recorded. So it is a common law backdate, it is not dependent on any judicial act at all.

Your Honours will see that in the Prisons Act – tab 5, I am told, your Honours, in the book of written submissions – is section 24 of the Prisons Act, which is I think reflective of how the matter stood up until that time. That section did two things. It confirmed the common law rule in relation to sentences of offenders committed at any criminal sittings of the Supreme Court, or a circuit court, but it added something, so it did two things. It confirmed the common law rule and it added a power on the part of the Court to vary the rule by order.

FRENCH CJ: What happened to that section?

MR WELLS: It was repealed, your Honour. It was repealed by an Act, which your Honours do not have, but it was cognate with the Correctional Services Act 1981 in the same - - -

HAYNE J: I see that you have given us the Correctional Services Act 1982 and it seems section 5 of that Act repealed the Prisons Act and section 21 took up the - - -

MR WELLS: Section 21 is the correct section, your Honour. I was ahead of myself. In 1988 that was repealed and replaced by section 30(1). In section 21 of the Correctional Services Act, your Honour, again there still remains the common law rule and there is in addition to that a power conferred on the court which is expressed by the word “directs”:

unless the Court imposing the sentence directs that the sentence shall be deemed to have commenced, or shall commence, on a day that is earlier or later than that day.

That in turn is repealed at the same time as the Sentencing Act of 1988. The cognate legislation, your Honours, for the sake of completeness, was the Statutes Amendment and Repeal (Sentencing) Act 1988 and in that Act section 21 of the Correctional Services Act was repealed and it was replaced by section 30 of the Sentencing Act 1988. Your Honours will then see that subsection (1) does not confer a power at all, in our submission. What it does is to place upon the court a duty. The duty is to make explicit, that is, to specify the date of commencement of a sentence and, indeed, it will be our submission in what we follow up with that - - -

FRENCH CJ: Well, power may be incidental to a duty. You may have a power given as a necessary incident of a duty imposed.

MR WELLS: Well, your Honour, we put it the other way around here. We say that there are some powers – well, in every case there is a power and the duty is consequential upon the exercise of that power. First of all, and this is why subsection (1) appears first, this is a duty consequent upon the exercise of the power of sentencing, that is, the imposition of sentence which is both a duty and a power, I suppose one should say, but consequential upon that is the duty of the court, having sentenced, to specify the date of commencement. It does not itself say anything about how that date is to be worked out and, indeed, I will take your Honours - - -

CRENNAN J: I suppose the subsections have a sort of scheme in relation to that very issue, do they not?

MR WELLS: Yes, your Honour. A matter that did not escape Chief Justice Doyle’s attention in Colson and which exercised his Honour’s mind somewhat was the incongruity in saying there is a general power in subsection (1) and then there are, as it were, exemplar powers in subsections (2) and following, that is, particular examples which might be oft resorted to. In the end, his Honour opted for that analysis and took the view that that is what subsection (2) and following did. It was not setting up a scheme so much as dealing with particular examples but, as it were, over the top of that, was subsection (1).

Our respectful submission is that everything points to the contrary. Everything points to this being a tightening of the powers in relation to backdating. I would want to add, your Honours, that it says nothing, except in the case of mandatory sentencing, about the common law power that has always existed of taking into account when sentencing, taking into account time spent and the ordinary and usual way of taking into account time spent in custody is by fixing a lesser length of sentence, to take that into account and mandatory sentences apart, that remains, and has always remained. Your Honours will find reference in our principal outline to the decision of the Court of Criminal Appeal in Victoria in Renzella. In Renzella this common law power was confirmed in answer to an argument that said under section 18 of the Sentencing Act - - -

GUMMOW J: What is the citation?

MR WELLS: Yes, it is. There is a subsequent decision which supports it, your Honours, of R v Arts & Briggs which is referred to, I think not quite accurately, in the judgment of Justice Gray in the court below. The correct reference is given there. But the issue that was being considered there was whether section 18 of the Sentencing Act, which dealt with the limited circumstances in which one could backdate a sentence, effectively excluded other means there of taking account of time spent in custody and the common law rule of reducing the length of a sentence to take account of time in custody was affirmed. So that always remains, but the question here is specifically in relation to the discretion to backdate.

KIEFEL J: Is there any provision, Mr Wells, in the Sentencing Act which deals with concurrency of sentences?

MR WELLS: Section 31, your Honour. It is really the reverse, it deals with cumulative.

KIEFEL J: I have noticed that. So the only provisions in relation to sentences are in Division 1, section 30 and 31.

MR WELLS: Yes.

KIEFEL J: There is no express reference to concurrent sentences.

FRENCH CJ: The common law presumed concurrency unless there is a special reason for effecting cumulative decisions. I think there is a little discussion of it in Professor Freiburg’s book on sentencing in Victoria.

MR WELLS: Yes, thank you, your Honour.

FRENCH CJ: So that is why you have specific provisions about cumulative sentencing.

MR WELLS: This is not exactly on point, but, your Honours, there is the provision in section 18A which enables a court in effect to impose one sentence for multiple offences.

FRENCH CJ: That is something else again, yes.

GUMMOW J: What is the significance of the phrase in section 30(1) “the time at which”?

MR WELLS: I do not know, your Honour. It seems to be counter to the common law which does not deal in divisions of the day.

GUMMOW J: Exactly.

HAYNE J: Or is it fixing it by reference to an event such, for example, as the release of an offender on parole? If the offender is already serving another sentence for another crime, you may date the new sentence to work from the date of release of the offender on parole for the offence that he is presently doing time for.

MR WELLS: Unless, your Honour, that is catered for under section 31, where effectively it is a cumulative operation. And indeed it has to be said that Colson’s Case, on its facts, does not bear upon this case because it was a question there as to whether a sentence could be fixed to commence at a subsequent time, that is, at the expiry of the service by the accused in that case of a period of detention in a training centre. Now, your Honours will see that in section 31(1), detention in a training centre is specifically now provided for. That is provided for as a result of Colson’s Case and it was the reason why the court felt in the end that it was at liberty to find a general discretion in subsection (1) because it was not provided for in section 31 at the time. It is now specifically provided for and that was an amendment that was brought in in 2000, which was the year after Colson’s Case.

Similarly, your Honours will no doubt have noticed that the Amendment Act of 2007 added a bit to section 30(2)(b). It not only provided that the direction could be given that the sentence would commence on the day on which the defendant was taken into custody, it also then provided in (ii) that it could specify a date for commencement between that time and the date of the sentence, sometime between that time, and that was also to take account of something that was discussed in Colson’s Case, in fact by reference to a comment of Chief Justice King in Jamieson’s Case, which is referred to in Colson, which was to this effect.

Supposing someone is taken into custody and then has periods on bail between then and the time of sentence? How do you go about taking into account by backdating? The difficulty that arose is that you might fix a date backdated to which was actually a date on which the accused was not in custody because they were out on bail. Section 30(2)(b)(ii) was designed to cater for that and that was brought in in 2007.

Your Honours, the fundamental point about section 30 and its structure is the careful use that is made of the language; the difference between “specify” and “direct”. We know that “direct” from the antecedent legislation was the signal for the conferring upon the court of a power to backdate, albeit in the Prisons Act it was “order”, but it was of the same category, that is, referring to a judicial power. But our contention is that the word “specify” is used here, and, indeed, used throughout the Act, to really mean the carrying out of a judicial duty consequent upon the exercise of the power which is signified by the word “direct”.

So, for example, if there is a direction given in subsection (2) for the sentence to commence on the day on which the defendant was taken into custody, there is a correlative duty by reason of subsection (1) to specify what that date is and there is good reason why that is so; not only for the benefit of the offender, but also for the benefit of a prison service, the benefit of the parole board. Everybody knows when the sentence was designated as commencing and that is its consistent use, in our respectful submission, throughout section 30.

Can I just ask your Honours to note in that respect that this same consistent use is to be seen in other provisions of the Act? It may be that given the time it will not be useful to take your Honours to those provisions. Perhaps I can just take one example in the Sentencing Act? In our outline we have given reference to other sections to the same effect. It is in our reply outline at footnote 6 where we give those references, your Honours. Can I just give these two examples. Section 70L, which deals with community service orders not necessarily an order that in this case is made by a court, but it gives the sense that we are contending for. In section 70L(1):

(1) If an authorised officer is satisfied –

of certain things –

the officer may make a community service order in respect of the debtor.

(2) A community service order must specify––

So the consequential sense is to be found there, as, indeed, it can be found, to give your Honours perhaps one other example, in section 47, Part 6 of the Act, “Community service and supervision”, “Special provisions relating to community service”:

(1) Where a court imposes a sentence of community service . . . the following provisions apply:

Then (a), (b) and:

(c) the court must specify –

Perhaps section 41(2) dealing with guarantors for bonds:

(2) A court –

(a) may require a defendant to find –

guarantors, and –

(b) if such a requirement is made, [the court] must specify the amount –

and so forth. Your Honours, in the sections we have identified in our reply outline there is, in our respectful submission, a consistent use of this language which has significance for section 30 and denies, in our respectful submission, the existence in subsection (1) of some general discretion to backdate.

KIEFEL J: Do you say that the Sentencing Act must be read as if it is intended to deal completely with sentencing to the exclusion of common law principles?

MR WELLS: No, your Honour.

KIEFEL J: Section 4 is relevant in that regard, I think.

MR WELLS: I do not think it has been suggested that this is by any means a code. But we would also add that if we are looking at the common law what we do know is that the common law does not recognise a power to backdate.

KIEFEL J: Section 4 refers to a power conferred by law to, “give any direction in relation to, a person found guilty of an offence.”

MR WELLS: Yes.

KIEFEL J: You do not think that is – that is not relevant?

MR WELLS: It simply leaves it open that there may exist outside this Act other powers which could enable the giving of a direction, but that, if anything, is consistent with our submission in relation to section 30 that when we are talking about the exercise power the legislature talks about directions as the means of exercising the power.

KIEFEL J: Do you mean by that that one should not read section 30 in light of the common law, it is an all or nothing proposition, it is either the common law or section 30, that is, section 30 operates to the exclusion of any common law principle?

MR WELLS: Your Honour, in this case it must for this reason, that at common law there is no power to backdate. There is only the common law rule, if nothing else is provided for, that the sentence commences at the beginning of the sessions but otherwise there is no common law rule which empowers a court to backdate a sentence. It has always been a matter of statute.

KIEFEL J: But there is a common law principle about double punishment.

MR WELLS: Yes.

KIEFEL J: Section 30 cannot be read in that light.

MR WELLS: Your Honour, it can only be read to the extent that it provides for a power to backdate and not otherwise. I might be misunderstanding your Honour’s question. If your Honour is suggesting that if we focus on double punishment then we must be able to find some way in which the Court can take account of double punishment.

KIEFEL J: No, I just wonder whether it would enable you to read section 30(2) rather more widely to take account of time served in respect of.

MR WELLS: Another offence, your Honour, that is the problem. It is time served in respect of another offence, and indeed if we take as our guide subsection (6)(b) it is where a defendant is in custody for some other offence. The default provision provides that the sentence takes effect from the date of the sentence. Our respectful submission is there is really not any room to move there in subsection (2), it is really considering a circumstance – which is a common enough circumstance – which is not this circumstance where someone is serving a sentence of imprisonment and is in custody for that reason, not for the reason only that they are awaiting trial for the offence for which they are ultimately sentenced.

KIEFEL J: Yes.

MR WELLS: Two matters are being put against us by the director, the respondent. The first is it is said, well, in fact the language “specify” and “direct” can be explained by this consideration that the word – pardon me for a moment.
Where the word “direct” is used it is in relation to an identifiable event, that is, the subsection identifies an event and uses the word “direct”. Where an identifiable event is not in prospect, the word is “specify”. The response we make to that submission is that, first of all, it is not borne out by the section; but, more importantly, there is no reason why one would draw that distinction. In other words, it is purely serendipitous if it happens that “direct” is associated with an identifiable event and “specify” is not. But your Honours will see that the theory breaks down in subsection (4) where, in relation to an identifiable event the word “specify” is used. So the theory does not work, but in any event there is no reason for the theory to be supported to begin with.

The other matter that is put against us is a variation of your Honour Justice Hayne’s question, and that is, well, then there are any number of circumstances in which a person may be initially taken into custody but ultimately not prosecuted for the offence for which they were arrested in the first place. There may be an amendment, for example, of the information further down the line; usually that is the example. Our response to that, your Honours, is that with the exception of murder there is really never a problem about that because the common law response to time spent in custody is a reduction of the length of the sentence. The common law has never approached that by reference to back dating, it has always approached it by taking it into account when fixing the length of the sentence.

Now, save in the case of murder, which is the special case, there is always the power to reduce the sentence to take account of time spent in custody. There is a bit of a quirk – two quirks, in fact. Your Honours will have seen from section 32 that there is in addition to murder another mandatory minimum non-parole period provided for, and that is in subsection (5)(ba), where it is said that where:

a person is sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period . . . is four-fifths the length of the sentence.

Now, your Honours will see that in subsection (10)(d):

serious offence against the person –

is defined in effect to mean –

a major indictable offence (other than . . . murder) that results in the death . . . or total incapacity.

So how would the question of time in custody operate there? Well, one can see immediately that there is ample room for the power to reduce sentence to take account of time spent in custody. That itself will operate upon the non-parole period which will be four-fifths of the head sentence. There is the other quirk which we simply note, but do not suggest anything be done about, is that the mandatory non-parole period of 20 years for murder is actually for an offence of murder, and that is also defined in subsection (10)(ba) to include:

(i) an offence of conspiracy to murder;

(ii) an offence of aiding, abetting, counselling or procuring the commission of murder.

Now, those offences or the nearest equivalent to them are provided for in section 12 of the Criminal Law Consolidation Act. Certainly conspiracy is provided for; aiding and abetting in those terms is not, but the equivalent of that is provided for in section 12. The sentence for conspiracy or aiding and abetting is not mandatory life but a maximum of life – liable to life imprisonment – which raises this strange quirk, that in relation to the offence of murder there is a non-parole period of 20 years, even though the head sentence might be proposed to be less. The maximum sentence for conspiracy or aid and abet may well be life, but it is not mandatory life; it is the maximum sentence that can be imposed. Lesser sentences can be imposed.

What we are faced with in those two cases is that strange result that produces a mandatory non-parole period of 20 years where it would otherwise have been proposed to impose a sentence of less than 20 years. It may be that the answer to that is that by some implied repeal it is now the case that you cannot be sentenced for conspiracy or for aid and abet murder to a head sentence of less than 20 years, but again it is not a conundrum that needs to be resolved in this case.

FRENCH CJ: Or if you are, you cannot get parole.

MR WELLS: Exactly, your Honour. It would present a real problem then about when the head sentence expired. Your Honours, can I invite the Court momentarily to take up Colson’s Case [1999] SASC 184; 73 SASR 407. It is about the sixth tab in in the book of documents, your Honours. I do not stay with the case other than to invite the Court to observe that in the principal judgment, that of Chief Justice Doyle, at page 410 and following his Honour did advert to the antecedent legislation and to the common law rule which, in South Australian jurisdiction, is sufficiently enunciated in the case of Garrett in 1978 which is referred to in paragraph 16 on page 410.

Then his Honour tackles the statutory construction issue at paragraph 21, and again I do not stay with paragraph 21. The principal thrust of his Honour’s consideration was this incongruity between the particular provisions in subsection (2) and following and what was said to be this general umbrella power under subsection (1) and the two ways one could look at it. What we do note is that his Honour does not tackle the language issue. His Honour does not tackle the text. There is no reference in these reasons to the use of the word “specify” and the use of the word “direct”, or at least no reference to any significance to be attached to it. Then in paragraphs 24 and 25, his Honour then says:

Taking into account the general terms in which s 30(1) is expressed, and its history, and not without some hesitation, I conclude that it is intended - - -

FRENCH CJ: Anyway, you have given us your submissions earlier on why that is wrong.

MR WELLS: Yes, your Honour. And paragraph 21, explanation of hesitation. It is a hesitation which was shared by his Honour Justice Duggan in the Court of Criminal Appeal in this case as well. In that respect, Justice White agreed with him.

Your Honours, can I turn then to the third step, which is, let us assume that there is a general discretion under section 30(1) to backdate, our contention is that it is nevertheless prohibited – we have to say impliedly prohibited – by the mandatory minimum non-parole period for murder provisions, which are section 32(5)(ab) and section 32A. Your Honours, we have addressed this is in our written work, I should say, at paragraphs 74 to 76 of our principal outline and in our reply at paragraphs 8 to 11.

The submission that we would want to put is to this effect. The principle of statutory construction which we contend leads to the conclusion that any power to backdate is not available in relation to the non-parole period for murder is the result of the convergence of several principles of statutory construction. The first is the principle which finds its fullest expression in the judgment of Mr Justice Dixon, as he then was, in Wallis’ Case.

FRENCH CJ: You have given us a passage you rely upon I think at paragraph 8, is that right, in your reply I mean?

MR WELLS: Yes, I have, your Honour. It is the whole passage that we rely on in our outline, your Honour. What lies at the heart of it is the Latin tag associated with it, the “expressum facit cessare tacitum” tag, of which Hordern’s Case, we submit, is a particular example; a particular example because it is addressing, in effect, a machinery or procedural limitations associated with the exercise of one power and the existence of a power covering the same subject matter which is more general. But the full expression is that which is found in the passage that we have set out in our outline, I think, in our reply.

This, of course, has now had a more concentrated treatment in the more recent case of Nystrom [2006] HCA 50; 228 CLR 566, to which we are grateful having our attention drawn, and in particular in the joint judgment of your Honours Justices Gummow and Hayne at pages 586 to 590 and also in the joint judgment of Justices Heydon and Crennan at page 616 and in the end they are always a matter of working with the detail of the provision, but the way we would put the submission here is this. This principle of statutory construction converges in this case with another, which in our reply outline we identify by reference to a citation from Bennion on Statutory Interpretation, and that is that prohibition of a thing or the doing of a thing impliedly prohibits indirect means of doing it.

What has been put against us consistently by the respondent and what has been supported in the courts below is this distinction that sections 32 and 32A deal with a mandatory non-parole period and therefore inability to reduce the length of a sentence. Section 30, if it has this discretion, deals with something different, namely, backdating and therefore you can backdate even though there is a mandatory non-parole period which prevents reduction other than in the special circumstances that are provided for.

Our respectful submission starts with this, that a period of imprisonment is meaningless without a date of commencement, that when one is talking about a non-parole period and, as it is put, of 20 years, that is just a period and unless you also in some way are going to accept that it starts from somewhere, then it is a period that has no meaning. In short, there is a necessary and inevitable connection between a mandatory period to be served and the date at which it commences. Indeed, that very connection is recognised in section 30(2) because, exceptionally, section 30(2) says that where time is spent in custody in respect of an offence for which sentenced, you can do one of two things; you can either reduce the term of the sentence or you can backdate it.

Expressly, in the terms of section 30 there is recognised an inevitable and necessary connection between the time of commencement and a period of imprisonment. What, in effect, is being said is that as a result of section 32A and section 32, where subsection (2) does apply, in the circumstances in which it does apply, you can do only half of what is available, because the one thing you cannot do is reduce the term of the sentence, that is prohibited by section 32, but that in some way you can nevertheless backdate. So even on the respondent’s view of things, there seems to be an incongruity here, that in some way only part of section 30(2) where it would apply is unavailable.

That, we respectfully submit, is incongruous as a matter of statutory interpretation, but, more importantly, it fails to recognise that we are talking about the same subject matter. The same subject matter is time spent in custody. That is the subject matter, and what section 32A addresses are the only ways in which that can be alleviated. The alleviation of the minimum time spent in custody is provided for and provided for only in section 32A. The effect of that conclusion, in our respectful submission, is that other means of reducing the time in custody are prohibited, and one thing is clear in this case and that is the proposal or backdating the non-parole period for murder would have the effect, if given effect to, of reducing the time spent in custody.

There is a further aspect to it which we respectfully submit supports the position that we take and that is this, the purpose of a mandatory non-parole period for murder we submit is to ensure that for murder the offender spends a minimum time in prison of 20 years. To backdate the sentence means and has the necessary consequence that for some of that time, that is for seven years of that 20 years, the offender is not serving a term of imprisonment for murder, he is serving a term of imprisonment for wounding with intent.

The purpose and intent of the legislature is to ensure that those 20 years are spent in prison for murder and that cannot be achieved if you backdate, but that is just another way, we respectfully submit, of contending for the proposition that what is prohibited directly, namely, reduction of time in prison, cannot be evaded by indirect means.

KIEFEL J: But concurrency is not prohibited. Concurrency is assumed by the common law and it is maintained by section 4.

MR WELLS: Your Honour, in the case at bar concurrency has, with respect, a very loose and inexact - - -

KIEFEL J: I just want to raise this for your consideration. If there is a presumption of concurrency of the common law could not section 30(1) which gives the judge power to specify:

specify the date on which, or the time at which, the sentence is to commence –

give effect to that presumption. So, it is not backdating, it is giving effect to concurrent notions of concurrency – assumed concurrency.

MR WELLS: Is your Honour putting this to me in relation to the offence that we are dealing with or is your Honour putting this to me as a general proposition about subsection (1)?

KIEFEL J: I am obviously talking about this case, but you need to deal with how section 30(1) can operate, whichever way you wish to deal with it, but why could not section 30(1) be read as permitting the specification of the date so as to give effect to assumptions of concurrency when there is a life sentence to be served?

MR WELLS: Your Honour is putting the case of a life sentence?

KIEFEL J: Yes.

MR WELLS: But if your Honour is putting the case of a life sentence in the current circumstances – that is where a sentence of imprisonment has already been served - - -

KIEFEL J: It has not been completed, though.

MR WELLS: No, but it has been substantially completed. There is less than a year to go, and it is well past the non-parole period. But any service of time, let us say, for the purpose of addressing your Honour’s proposition, cannot in our respectful submission involve any more concurrency as that term would be used than the amount of time left to serve by the applicant at the moment. It would only be in relation to that amount of time that one could see any concurrency occurring. The rest is about backdating, and concurrency is not.

Backdating will have the effect of creating ex post facto a concurrency, and we say that that is antithetical to the whole purpose and intent of section 32A and section 32 anyway. But if we are going to accept for the purpose of this argument that there is a presumption of concurrency, the question still is going to be concurrent with what? In the case at bar there is nothing for the presumption to work with unless you then take a further step and say – which is what the issue is – you can backdate. So a presumption of concurrency will not achieve the result, in our respectful submission, only at best backdating will because the period has already been served. We are not looking to the future, we are looking backwards.

Your Honours, this perhaps is the point at which my earlier observation can be fitted in – namely, it is in any event difficult to conceive of a life sentence operating retrospectively. A life sentence is a sentence of imprisonment for the rest of one’s life, and the notion of a life sentence being treated, as it were, as having started some time back is itself a contradiction in terms. Life sentences are, and they are peculiar beasts as a result, prospective.

We would run into again another incongruity if we were going to talk about backdating in relation to life sentences, and that is the non-parole period operates in relation to a period in respect of which the life sentence is not being served. Life sentence prospective backdating the non-parole period obviously makes it out of kilter with the period during which the head sentence is being served. When one looks in that respect at the perhaps on its face rather unhelpful definition in the Correctional Services Act of “non-parole period” which is defined to mean:

a period fixed by a court as a period during which a prisoner may not be released on parole.

The question that one has to ask is, released from what or in respect of what? The answer that might be posited would be in respect of the head sentence which is being served, which is also confirmed by the definition of “prisoner”, which is part of the definition of “non-parole period” – that is the “period during which a prisoner may not be released on parole”. “Prisoner” is then defined to mean:

a person committed to a correctional institution pursuant to an order of a court or a warrant of commitment.

One asks the question, with respect to what? The sentence of life. So the definitions themselves identify - - -

FRENCH CJ: All that is designed to do, though – I mean one can focus on the word “period”, but the purpose of it is to specify a date before which the prisoner cannot be considered for release on parole. That just locks into an administrative process which is in the hands of the parole board.

MR WELLS: Your Honour is, with respect, entirely right.

FRENCH CJ: I do not think one needs to mythologise it too much and metaphysical worry about sort of abstract periods.

MR WELLS: No, indeed not, your Honour. But it does do is to point out a consistency with the argument that we put – that is, the non-parole period obviously has to coincide with the service of the head sentence, and in relation to a life sentence that can only be prospective. If your Honours are planning to pause - - -

FRENCH CJ: How much longer are you going to be, Mr Wells? There is no criticism to say that you have taken us through every nut, bolt and rivet of the statute.

MR WELLS: I beg your Honours’ pardon. I could not think of any other way of doing it.

FRENCH CJ: No, that is all right.

MR WELLS: I have only a short submission to put to your Honours about free choice. Indeed, there probably are two remaining matters; the question of abuse arising out of the absence of free choice. In that respect the submissions that we would want to put are fully set out in our outline, your Honours. In particular, can I give your Honours the references. Paragraphs 37 to 48 of our principal outline, but in addition, paragraphs 13 and 14 of our reply outline. This is the end point, that is, the abuse that we identify as arising from the absence of a power to backdate in these circumstances and we identify that it is tied up with free choice. The free choice to plead - - -

FRENCH CJ: Well, putting it into the context of abuse of process, would you characterise the situation in which it puts the applicant as unjustifiably oppressive.

MR WELLS: That is so. In this path that is the nature of the evidence. As I am reminded, your Honours will understand that that is just one of the two paths and the nature of the abuse is different, depending on which path.

FRENCH CJ: Yes, I understand.

MR WELLS: The final point, your Honours, is simply this, that however much there might be a power to backdate, our respectful submission is the non-parole period for murder can never be backdated beyond the date of the commission of the offence. The date of the commission of the offence was the date on which the victim died and it could never be said that before that time any period being served in prison could, on any view, be regarded as time being served in prison for the offence of murder which at that point would not have been committed. As we put in our outline, it would take, we respectfully submit, a bold step to suggest that someone should be
treated as serving a sentence of imprisonment for murder at a time when they are innocent of murder, which would be the position prior to the date of the death of the victim. Those are our submissions, may it please the Court.

FRENCH CJ: Thank you, Mr Wells. We will return at 2 o’clock. The Court will adjourn until 2.00 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

FRENCH CJ: Yes Mr Solicitor?

MR HINTON: If the Court pleases. Over the luncheon adjournment I reflected on what I thought was the direction that your Honour Justice Gummow was taking us in this morning and, as a consequence of that, it has occurred to me that it cannot be an abuse of process for a court to apply a valid law of the legislature. Here you have a combination of the abrogation of the year and day rule and the 2007 amendments with respect to murder that imposed that mandatory minimum non-parole period.

That permits the inference, if you accept the applicant’s arguments as the construction and application of the Criminal Law (Sentencing) Act, that you can double punish, therefore to succeed, if you accept that construction of the Criminal Law (Sentencing) Act, there must be a challenge to the validity of the legislation. There is none. The Director of Public Prosecutions’ submission is that Parliament has abrogated the year and a day rule and has brought in those 2007 amendments, but it has done so knowing of the existence of section 30(1) and the long-established practice of the criminal courts in this State that permit it to account for backdating.

GUMMOW J: And knowing of the construction placed upon section 30(1) by the court at the time of the most recent legislation.

MR HINTON: Correct, and, arguably, knowing of this matter that has straddled the introduction of the 2007 amendments. So the submission of the director is that there is no intent on the director’s submission, with respect, to the construction of the Criminal Law (Sentencing) Act to double punish. It can be accounted for in this case by the use of the power to backdate in section 30(1). This Court’s judgment in Pearce can be faithfully complied with and there is therefore no double punishment and no abuse. In short, if you accept the respondent’s submissions, there is no abuse. If you accept the applicant’s submission, then there can also be no abuse because there is no challenge to the validity of the legislation.

If the Court pleases, the director has always maintained in this matter that if the applicant is found guilty of murder, either upon his plea or after a trial, then he should be sentenced on a basis that accounts for commonality of elements and any overlap in the factual basis that the sentencing judge determines he should be sentenced upon and the director has always maintained that even after the 2007 amendments, that overlap can be reflected in backdating. Pearce v The Queen requires that that overlap be taken into account.

The ultimate question then for this Court is, does section 30(1) allow a sentencing judge to address common elements and the common factual basis potentially for sentencing the applicant? Pearce is distinguishable as the Court has made clear on two bases. The first is that, unlike the sentencing judge in Pearce, here our sentencing judge will not be sentencing for both offences. The second is, unlike the sentencing judge in Pearce, we have the issue of mandatory sentences that we have to deal with in this matter; the mandatory head sentence for murder and the mandatory non-parole period. But, nevertheless, the principle to be derived from Pearce, in my submission, is that you must account for commonality of elements and that can be done.

It is tempting to jump on your Honour Justice Kiefel’s bandwagon, if I can put it that way, and say, well, we also have this concurrence at common law we could use by virtue of section 4. Tempting, but I avoid it for this reason. The common law power of concurrence has developed on the basis that were you use that power, the same judge is sentencing for the same matters. I am unaware of a case that allows you to use it in this sort of circumstance where you are not sentencing for both offences, but you are trying to overcome what has happened by virtue of another judge’s actions. Tempting, but I will resist. I am not saying that it is necessarily by any means wrong. It is something that I have not had the opportunity to research to see if you can apply it in this sort of situation.

FRENCH CJ: I suppose in the context of abuse of process, it might be oversimplifying things, but the question might be no more complicated than to ask whether, irrespective of issues which arose in Pearce in a quite different context and so forth, there are in the legislation tools at hand to mitigate the impact of any oppressive outcomes that might otherwise occur, and that of course puts to one side as perhaps arcane and unreal arguments about bringing the administration of justice into disrepute. It would simply be a practical question whether the legislation gives the judge the equipment to deal with commonality and to avoid the worst elements, if you like, of double punishment.

MR HINTON: If the legislation does, as the respondent says, or submits it does, then there can definitely be no abuse. You do not even get to the oppressive argument because, of course, you can account for commonality of elements and the factual circumstances. That in the main has been the way in which the director has tackled this in the lower courts. We do not need to so much consider the principle upon which it is said to be an abuse because we do not even get there.

Can I deal with the structure of the Criminal Law (Sentencing) Act, and I appreciate what your Honour the Chief Justice said this morning about my learned friend thoroughly taking the Court through it, I will try and be quick, but there are one or two salient points that I do need to point out. The sentencing judge in this case will obviously start with section 11 of the Criminal Law Consolidation Act, as your Honour Justice Gummow pointed out, and the mandatory head sentence.

Then you move, in my submission, to section 32(1)(a), which is the requirement to set a non-parole period, you must fix a non-parole period. That is subject to section 32(5) – my learned friend has taken the Court to it – in particular to placitum (ab) and the mandatory minimum. There has been mention of the power to decline to fix a non-parole period. That is to be found at section 32(5)(c). In this case, when one looks at section 32(5), realistically a non-parole period will be imposed.

There is a curious provision, section 32(7), that I should point out to your Honours:

In fixing or extending a non-parole period –

in this case the sentencing judge will be fixing the non-parole period –

the court –

(a) must, if the person in respect of whom the non-parole period is to be fixed or extended is in prison . . . serving a sentence of imprisonment –

as the applicant is –

or detention, take into account the period already served.

To some extent then, in deciding what to do with this mandatory non-parole period, although you cannot go beneath that base of 20 years unless the special reasons were established, but if you are above it you can make a reduction for time served, according to section 32(7). So if it transpires in this case that the sentencing judge determines that in the applicant’s situation, if he pleads guilty or is found guilty, that the appropriate non-parole period is 23 years, three years can be taken off without referring to any other power for the time already served under that section.

HAYNE J: Is the expression a “sentence of indeterminate duration” a technical or defined term? I see it is used in subsection (8) of this section we are just looking at, section 32.

MR HINTON: It is defined in section 3, if your Honour pleases, meaning “detention in custody until further order”.

HAYNE J: Yes, I see. Thank you.

MR HINTON: There are – I think it is under section 23 – those that cannot control their sexual instincts, habitual criminals, that sort of thing. I take the Court then to section 32A and, in particular, to subsection (1). I appreciate the Court has been to it before but, in my submission, it is important in looking at subsection (1) to construe the work that it has to do. It establishes a standard in addition to a mandatory minimum. It establishes a standard insofar as it tells you that the mandatory minimum is:

for an offence at the lower end of the range of objective seriousness of offences to which the mandatory minimum non-parole period applies.

So that in this case, objective seriousness for murder at the lower end of the scale, would probably include this particular case. By that I mean no premeditation on the Crown case, as it currently stands. There is no allegation of an intent to kill. It is an intent to cause grievous harm. There is liquor involved. It is, referring to R v Stewart, which is in our outline, in the judgment of Chief Justice King, it would be treated as at the lower end of the scale. But the important point I make is that it establishes a standard in addition to setting that mandatory minimum. Section 32A(2)(b) is then important. The Court has already been taken to it. In my submission, it too is important because:

if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, [the court may] fix such shorter non-parole period as it thinks fit.

On one reading, the moment there are special reasons, you could say the discretion is at large. The moment you establish a special reason under subsection (3), then you can suddenly take anything into account in dealing with the non-parole period. In my submission, that is not the construction contended for or intended by the legislature. The reason to reduce the non-parole period is the special reason in section 32A(a)(b), when it comes to a reduction “as it thinks fit”, the court is referring to the discretion to reduce for that particular reason. The reasons themselves are set out in subsection (3). So in this case, if the applicant were to plead guilty, it does not mean that the court can reduce his non-parole period by the time already served because it suddenly has an open-ended discretion.

GUMMOW J: Did you use the name of the person concerned?

MR HINTON: I am sorry, your Honour?

GUMMOW J: Did you use the proper name?

MR HINTON: Yes, I have.

GUMMOW J: Well, that would have be taken out of the transcript.

MR HINTON: Yes, it would. I will desist, the applicant.

FRENCH CJ: Would (3)(c) pick up formal admissions that narrow the issues in a prosecution, notwithstanding a plea of not guilty, as a co-operation in the prosecution?

MR HINTON: Arguably, it would, however - - -

FRENCH CJ: Those are provisions, presumably, for formal admissions to be made on the record?

MR HINTON: Yes, under the Evidence Act. In my submission, what is within contemplation there is the larger sort of discount that in practice we see where there is assistance in identifying a co-offender and bringing that - - -

FRENCH CJ: I am sure that is what was in mind, but it is just a question of construction.

MR HINTON: In effect, it is for the sorts of mitigatory matters that the courts have given larger discounts for and you can get up to 50 per cent, at common law, for assistance in bringing someone to justice in addition to a plea of guilty, for example, and in my submission, that is what is contemplated by that subsection.

FRENCH CJ: I mean you could see a situation where in a case of this kind the only issue might be causation, or everything might be an issue.

MR HINTON: Yes, but you will see that there was a case stated. We attempted to get some answers to some difficult questions about how the prosecution could proceed and whether or not it was a matter of just proving the fact of conviction on the wounding with intent charge.

FRENCH CJ: Yes. Well, you did not get up on that.

MR HINTON: Not quite; they were prepared to answer it, but your Honour is quite right, in issue is a fact of death and causation. So the point I seek to make at this juncture is that in fixing a non-parole period some account can be taken of time spent in custody by virtue of section 32(7), provided you do not breach that base. If there is the plea of guilty there is only, in my submission, a discretion enlivened to get a discount for the plea in the normal way as this Court has dealt with in Cameron’s Case and Siganto’s Case.

I pause to point out that the subject matter of section 32A is mandatory non-parole periods and their calculation. The subject matter of section 32 is the fixing of a non-parole period. Neither say anything about the commencement of a head sentence or the non-parole period. If the Court accepts that construction of section 32 and section 32A then the only way to account for time served on overlapping elements in this case – subject to her Honour Justice Kiefel’s thought – is to backdate, and that leads us then to the provisions that govern the commencement of sentences and section 30(1).

Your Honour Justice Gummow, in my submission, this morning asked a question about section 30(1) which was, “What do the words ‘or the time at which’ do?” In my submission, those words are very important because if the applicant’s submissions are accepted then they have no work to do, you do not need them. All you would need is the Court must specify the date on which the sentence is to commence or to be taken to have commenced. So they must have some work to do, and if they have some work to do beyond the other words, then it tends to suggest that actually what we do have is a general power, as Chief Justice Doyle found in Colson’s Case.

What worked then? Your Honour Justice Hayne provided an example. Another could be contempt. Section 4 or 5 of this Act indicates that it does not apply to contempt, so if during the course of the trial the applicant were to provide the judge with a salvo that warranted him being taken into custody, or any person, and held in custody until they purged their contempt, then you could say their sentence – assuming they were convicted – is to commence at that time or at that time when they purged their contempt. So there is a function for those words. It is also broad enough to cater for detention in other circumstances beyond the state. By that I mean if you were detained in Queensland whilst challenging extradition to South Australia or if you were detained in one of the migration centres.

We had, the Court will know, troubles at Baxter. People were charged with offences – Commonwealth and State offences – but then returned to Baxter serving time. That is something that can be taken into account potentially under that section if you give it that broad power. My first submission though as to its correct interpretation is that those words “or the time at which” must have work to do and they indicate that the interpretation advocated for by the applicant, in my submission, is not appropriate.

I pause to point out that the interpretation advanced with respect to section 30(2) has always been the one accepted in this State. That is, it is limited to the offence for which the defendant is subsequently sentenced. You will see that one of the reasons for Justice Duggan finding that there was a general power is that section 30(1) the practice of the Court has long been to rely upon that general power to ensure, in circumstances such as those that your Honour Justice Hayne in your assault contemplated, are dealt with justly.

Another example is where someone is charged with rape, but on the information that the director lays there is the alternative count of unlawful sexual intercourse. Denied bail on the rape for that, because that is what they were arrested for, go to trial, not guilty rape, guilty unlawful sexual intercourse, in this State section 30(2) does not allow you to take into account time spent in custody, denied bail, save that you can invoke section 30(1). So it not difficult at all to postulate practical examples, everyday examples, in the courts of this State where section 30(1) is resorted to to overcome the difficulties of section 30(2).

My second point as to the applicant’s construction of section 30 is that if it is correct, then one would expect provisions addressing commencement dates for non-parole periods to mirror those for head sentences, but they do not. You would expect that section 30(1) and section 30(2) which apply to head sentences would be mirrored in section 30(4) and (5). Section 30(5) does not allow for section 30(2)(b)(ii), therefore section 30(4) must be a general power, and if it is a general power, then so must section 30(1).

The last addition I make with respect to the construction of section 30 is as in our outline and that is the use of the words “specify” and “direct”. It is put by the applicant that you “specify” in order to achieve the purposes set out in subsections (2), (3) and (5). In my submission, you do not need to do so. You do not need to specify a date or a time because those sections tell you when the sentence starts by reference to an event. You direct that the sentence will be taken to have commenced on the day on which the defendant was taken into custody, the event. Subsection (2)(b)(ii) bears this out, because suddenly we have to switch back to specify it again because we do not have an identifiable event.

Subsection (3)(a) “on the day on which the defendant is taken into custody”, an event. Subsection (3)(b), “on the completion of that other sentence”, an event. There is good reason then to use the different language, one that does not by any means point to the interpretation advocated for by the applicant. In my submission, therefore, section 30(1), as was found in Colson’s Case, does contain a general power to backdate that can be used in this case. The 2007 amendments do not change that.

GUMMOW J: But to backdate to a date before the commission of the offence?

MR HINTON: Yes, your Honour, and I should also point out, it is not just backdating, you could also forward date under that provision, but before the date of the offence, there is no qualification on the discretion in section 30(1). The question is, is there a principle basis upon which you can backdate to a date before the offence? Answer in this case, yes, the date on which he was taken into custody, two days after he performed the act that ultimately caused death.

We then have the submission of vindication of the community and denunciation. If he is subject to, for example, a mandatory minimum non-parole period of 20 years, that is backdated to the day he was taken into custody. He gets 20 years for what he did on 24 September 2002. He is not serving 20 years for wounding with intent. He is doing 20 for murder. It may be that it is backdated and the offence had not been committed at that time, but he is serving real time; 20 years for murder. The public would well understand that, so would he. There is the denunciation; there is the vindication of community values.

FRENCH CJ: So when you say the offence had not been committed at that time, you mean the offence was not complete at that time. He had done everything he had to do, as it were.

MR HINTON: I take your Honour’s point.

FRENCH CJ: It was the consequence which is an element of the offence which occurred. I mean, it is still the same point, but - - -

MR HINTON: That was accepted by Justice Layton at first instance, by Justice Duggan and indeed Justice Gray. There is a principle basis upon which you can backdate to that date which, if you accept the director’s interpretation of section 30(1), in real terms means no double punishment, in real terms.

CRENNAN J: So the principle basis would be the common elements.

MR HINTON: The common elements, yes, the Act. Well, that is one. There is also the factual basis, and the factual basis upon which the applicant will be sentenced for murder cannot go past as one of its elements that on this day you did stab the deceased and it was that stab wound that from that point led us forward in time to when he ultimately died. So we do have the principle basis. Provided there is a principle basis, no other restriction on the discretion, if your Honour pleases.

FRENCH CJ: Do you accept that the commonality, so far as the wounding is concerned, is in the conduct rather than the elements? They are different. I mean, the elements of murder, relevantly killing with intent to inflict grievous bodily harm, whereas the other one is complete, when if you have got the requisite intent, the moment the knife breaks the skin the offence is complete, it does not even have to go any further, or you are not concerned about what happens beyond that, except as evidentiary of your intent.

MR HINTON: Accepted. That is commonality of elements. The common law, in my submission, would go so far as to say, well, where you have commonality on the factual basis then you should allow for that as well, and indeed Johnson’s Case stands for that proposition. And so in the applicant’s case the director’s attitude has always been it is not just the elements themselves but there is a large overlap on the factual basis here that he will be sentenced upon, that will inform the sentence, and to that extent that should also be taken into account.

With respect to the interpretation of section 30(1), can I also make these very brief points? It permits flexibility in sentencing and that should not be overlooked. There are many judgments in this Court that indicate that it has restrained itself very easily from constraining sentencing judges. When it comes to this legislation, which is to be interpreted in favour, one would have thought, of flexibility so that punishments can fit crimes in all manner of circumstances, that is a factor that should be taken into account. It was something that moved the Chief Justice in Colson’s Case and is a submission I make before this Court.

The general power is conducive to that. To interpret it, as Colson does, as the respondent advocates should be done, does no violence to the language and it still remains consistent with the inference that Parliament, not the strongest inference that one should rely upon, but Parliament saw no reason to change what had long gone on. Accordingly, if your Honour pleases, if the Court pleases, for the reasons set out at paragraph 36 of our written submissions, the judges at first instance and the Supreme Court here were all correct in holding that section 30(1) provides a general power to backdate and that the 2007 amendments have not altered that position.

Accordingly, if the Court pleases, for the reasons set out at paragraph 36 of our written submissions, the judges at first instance in the Supreme Court here were all correct in holding that section 30(1) provides a general power to backdate and that the 2007 amendments had not altered that position. We then move to the position that if we do have power to backdate, can it be used to reduce the non-parole period below 20 years? The Anthony Hordern principle is invoked against us. The submission is that we are dealing with the same subject matter.

In my submission, for the reasons set out by Justice Duggan and Justice Layton – Justice Duggan at application book 132; Justice Layton at 108 and 109 – backdating does not amount to a decrease in the non-parole period. Twenty years, if it is 20 years, will still be served. Twenty years referable to this crime will still be served. With respect to the Anthony Hordern principle, section 30(4) – because that is the discretionary power – we have focused on section 30(1), but, of course, we also have to take into account section 30(4). Both are powers in my submission.

Those sections do not deal with the reduction of a mandatory minimum non-parole period like section 32A does, only with the commencement of a non-parole period. Accordingly, we do not have the same subject matter. The Anthony Hordern principle is not engaged and the construction contended for by the respondent, in my submission, should be accepted. I have already dealt with the point about whether or not - - -

FRENCH CJ: The interpretive principle in favour of flexibility, as you put it, given that Parliament has from time to time shown an enthusiasm for reducing flexibility, is that clear words are needed to confine or limit judicial discretion in this area. Is that really how you put it?

MR HINTON: Well, I do. In some ways I am praying in aid of what Justice Gray said. When we look at the power to backdate and the injustice that its then developed and provided to sentencing judges to avoid, one would have thought that if the court was going to get rid of it, they would have done so expressly.

FRENCH CJ: I just wondered whether there was some sort of higher order interpretive principle that the removal of judicial discretion is not likely to be inferred without clear language.

MR HINTON: I am not sure if there is a principle that quite goes that far.

FRENCH CJ: No. I am just wondering whether it is implicit in some of what you are saying.

MR HINTON: It is. There is definitely dicta in this - - -

FRENCH CJ: As distinct from the accident of identifying particular injustices that might occur in unusual circumstances.

MR HINTON: I take your Honour’s point. There is definitely dicta from this Court about legislation that interferes with a common law power or a common law right.

FRENCH CJ: Yes. That is slightly different.

MR HINTON: It is, but not - - -

HAYNE J: But this, if it is anything, would be Shin Kobe Maru, that a statute giving a court power or authority is not to be read in a niggardly fashion. I think I do less than justice to Shin Kobe Maru, but that is the proposition, is it not?

MR HINTON: I am grateful to your Honour Justice Hayne, you have the wood on me, I will accept it as the proposition, but what we do have here though is a common law principle, you must count the double punch. Long accepted, and yet we are being asked implicitly to find that that no longer is acceptable to the South Australian Parliament. One would have thought, where it has in the past permitted section 30, knowing of the that judgment in Colson to be used to ensure that that principle is respected that you would have some form of express reduction in the power available to the Court, some form of express abrogation, and we do not. I arrived in a position but the respondent contends that if the applicant is convicted either on his own plea or after a trial, the sentencing judge can backdate to take into account time already served referable to.....and anything common in the factual basis.

That then takes us to Pearce’s Case and whether or not the power to backdate actually deals with double punishment. Again, my learned friend has quite thoroughly taken the Court through Pearce’s Case, but my submission is that it does not stand for the proposition that you cannot use concurrence – here we use backdating for the same purpose – concurrence to avoid overlapping elements. At paragraph 43 of Pearce 194 CLR behind the third tab in the common book of materials, paragraph 43 comments that:

Prima facie, then, he was doubly punished for the one act.

It makes that comment having acknowledged concurrence of the sentences for counts 9 and 10. Now, if my learned friend is right, then there is nothing prima facie about it, there is an error, you cannot do it. But it is only prima facie, the plurality says, and why it is only prima facie, an error, because it masks potentially the true error. The true error would have been disclosed had the sentencing judge gone through the process, advised but not commanded by the plurality, in the last sentence of paragraph 45. In this case the plurality does not say you cannot use concurrence. You cannot use the totality principle in accounting for overlapping elements. It says, you must in sentencing account for overlapping elements, and you cannot concern yourself only with the total period to be served.

That is the proposition it stands for, and no more, and if the Court accepts that, in my submission, then of course backdating is a means by which – coupled with reasons – in this case, double punishment can be overcome. Now, that can be tested by reference to the authority of Johnson v The Queen in the next tab in the common book of materials. It can be tested because in Johnson v The Queen Justice Scott of the Supreme Court of Western Australia did exactly what my learned friend submits has to occur here. He made an adjustment to one of the drug charges that were before him. At paragraph 7 we have the charges set out. At paragraph 10 we have the remarks of Justice Scott. At paragraph 11 what he did and in particular at about point 3:

His Honour reduced the sentence imposed upon count 2 on account of the “totality principle”.

Commonality is what he has decided applies here and therefore on count 2 I will take the penalty down. One of the complaints that the Court of Criminal Appeal in Western Australia dealt with in the quotation from Chief Justice Malcolm’s judgment immediately across from paragraph 11 there, was that Justice Scott had not complied with that practice to be found in Pearce’s Case in the last sentence of paragraph 45. He had not fixed an appropriate sentence for each offence and then considered questions of cumulation or concurrence as well, of course, as questions of totality. He made an adjustment along the way. Now, that is what my learned friend says the sentencing judge must be free to do in this case and cannot do. This Court held at paragraph 26 that the approach in Mill and Pearce was as per that final sentence in paragraph 45. The fact that it was not adopted by Justice Scott was not an error. At about halfway between D and E on page 624, paragraph 26:

Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence.

The plurality in Johnson identifies the ratio in Pearce. You cannot have regard only to the total effective sentence.

You must account for overlapping elements. Pearce does not stand for any greater proposition. It does not command a particular approach. It recommends one, consistent with Mill’s Case, but just as Justice Scott in Western Australia adopted a different approach that still meant he accounted for overlap, does not mean that he erred.

FRENCH CJ: On your submission you cannot do anything with the sentence, apart from backdate it.

MR HINTON: Correct.

FRENCH CJ: It has to be a life sentence.

MR HINTON: But to what extent do you backdate it is the question. You backdate to the extent of overlapping elements. You do not just backdate for the sake of it. You look at the overlapping elements, commonality, and backdate accordingly. In my submission, therefore, the principle in Pearce can be complied with. The interpretation advanced by my learned friend is far more restrictive and, in actual fact, is not the proposition for which Pearce stands. In this case the sentencing judge will not consider the total effective sentence and merely backdate it. The sentencing judge will consider overlapping elements - - -

FRENCH CJ: Does concurrency have anything to do with this at all? Concurrency is kind of a prospective thing and, as I suggested earlier, it was really a common law presumption. It may be that backdating looks like concurrency through the rear-view mirror, but it is conceptually different, I suspect.

MR HINTON: Your Honour is quite right.

FRENCH CJ: I am just not wanting to get districted by red herrings, that is all, and dragging in a whole lot of baggage about concurrency which may not be necessary.

MR HINTON: My submission is that backdating does, in effect, the same as concurrency. You are right, it is a backdoor method or looking in a rear-view mirror, one way of doing the same thing.

CRENNAN J: But, as you point out, concurrency is a bit inaccurate, in a sense, because this is a sentencing task on a later occasion.

MR HINTON: Yes. The essential submission is that backdating, under section 30(1), allows the sentencing judge in this case to comply with the principle to be drawn from this Court’s judgment in Pearce and be faithful to it.

FRENCH CJ: You call it virtual retrospective concurrency.

MR HINTON: Another way of putting it. The Pearce principle is complied with, the common law principle, one transaction rule, now to be seen in the light of Pearce, complied with, no double punishment. But importantly, if your Honour the Chief Justice pleases, Pearce does deal with real time. In permitting concurrence to be a resolution or a means of resolving the problem, it does respect the fact that you could have two sentences that are appropriate sentences; in this case, wounding with intent, seven years on the top, four on the bottom, for the murder, life and 20 years.

Pearce respects the fact that you can get both of those, but provided you do not serve real time doubly, the common law principle is not offended, and that is what concurrence permits. That is what backdating in this case would permit. So Pearce, in my submission, answers the theoretical argument of my learned friend as well. It is concerned with real time served.

If the Court pleases, if the respondent’s submission with respect to the interpretation of Pearce is accepted, then it is not the case that in order to address overlapping elements you must necessarily reduce one or other or both sentences. Concurrence – I appreciate your Honour the Chief Justice’s point – or backdating allows you to achieve the same outcome. We are talking real time served. Therefore, it is not double punishment to be subject to two sentences, each viewed in isolation to be appropriate, as will be the case here, but served in whole or in part concurrently by virtue of backdating so that allowance is made for common elements or commonality of factual circumstances.

In my submission, the majority in the Court of Criminal Appeal was correct and Justice Layton at first instance was also correct. It remains for me to deal quickly with Justice White’s judgment at application book 160, paragraph 138.

GUMMOW J: I thought you were a bit harsh on this in your written submissions, uncharacteristically. Anyhow, what is the defect you say?

MR HINTON: Justice White points out that there are three defects in the respondent’s submission, which is essentially the same. The first his Honour says is:

the submission overlooks the limitation on the sentencing judge’s discretion which would exist in this case.

There is no such limitation if there is that general power in section 30(1). It allows you to account for overlapping elements:

Secondly, fixing one sentence without reference to the sentence imposed for the other will mean that no account is taken in the second sentence of the fact that elements common to both offences have already been punished in the first sentence.

In my submission, with respect to Justice White, that is not correct. Once you arrive at the appropriate sentence for murder, you can then turn to consider overlap and you will adjust by virtue of the backdating power to address overlap. So you will necessarily consider the sentence imposed in the first instance and allow for overlapping elements:

Thirdly, the submission assumes that regard need only be had to the total effective sentence to be served by the appellant.

In my submission, that too, with the greatest respect to Justice White, is incorrect, that the sequence of addressing the sentence that I have set out necessarily looks at overlapping elements and all factors necessary to be taken into account. It does not only have regard to the total effective sentence but looks at the appropriate sentence for each matter accounted for overlapping elements.

Accordingly, in my submission, the application for special leave should be dismissed. Can I make one last comment. We were when we were the Court on the last occasion asked to look at the question of suppression, suppression being the word that is used in this State.

GUMMOW J: It is not the word used in this Court.

MR HINTON: No. It is derived from section 69A of the Evidence Act in this case which empowers a court to make a suppression order. That is how it is framed. The reasons are set out in both an annexure to the respondent’s written submissions and in - - -

GUMMOW J: Anyhow, there is a practice note in this Court that unless something is done by this Court the anonymity is preserved.

MR HINTON: If the Court pleases, I will say no more. Those are my submissions, if the Court pleases.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Wells.

MR WELLS: May it please the Court, three matters of reply. The first takes us, I am afraid, back to section 32A of the Sentencing Act. My learned puts the submission that there is a limit on the extent to which a sentencing court can fix downwards the non-parole period where it is “satisfied that special reasons exist”. In order to read subsection (2)(b) in that way it would be necessary to add additional words at the end of the paragraph where it says “fix such shorter non-parole period as it thinks fit”, one would have to add “having regard and having regard only to the special reasons”, but what it says is “as it thinks fit” and what it represents, in our submission is a separate sentencing regime which is permitted if the “special reasons exist”. The special reasons exist because the legislature has determined that those are the reasons which are put forward to induce the existence of special reasons.

FRENCH CJ: The logic of it is you have regard to these matters and only these matters in deciding whether special reasons exist.

MR WELLS: That is right.

FRENCH CJ: So, there is a kind of characterisation process that follows, having regard to those matters. It is some sort of the evaluative judgment posited, I think.

MR WELLS: But once one is satisfied, then the non-parole period is that which is fixed as the sentencing court thinks fit. In that respect, it would, under that alternative regime, and that is the way we would put it, it would have regard to, amongst others, section 32(7), which my learned friend also referred to, which is where in fixing – note that the same word is used the verb “fix” – in fixing this new regime non-parole period, the sentencing court takes into account the period already served in relation to another sentence of imprisonment. That is the first matter of reply.

The second matter of reply takes us back to section 30, my learned friend’s explanation for the phrase in subsection (1) “or the time at which”, which follows “must specify the date on which, or the time at which”. In our respectful submission, that does not, as it were, signify the existence of any general discretion. What that does is to confirm that subsection (1) is a provision which, as we had put it in our submission, concentrates on the duty of the judge to fix the commencement date and the time where you cannot actually fix a date is because of section 31 where it is proposed that the commencement date would be at a future time by reference to section 31, that is, following on the serving of a prior sentence of imprisonment.

Your Honours will see in that respect that section 31 deals only with the power to direct. It does not deal with questions of specifying. That is because subsection (1) deals with the specifying and it does it by reference to the time at which, that is, on the expiry of the prior sentence of imprisonment. That view of the phrase “or the time at which”, in our respectful submission, simply confirms the role of subsection (1) for which we contend.

Finally, my learned friend submits that Pearce’s Case is about serving real time imprisonment. We do not suggest that Pearce’s Case was not concerned with the amount of time served, but, in our respectful submission, the whole point of Pearce’s Case was to say that real time served is not the last word, that there is something more than that and it is concerned with fixing the appropriate sentence having regard to common elements.

Johnson’s Case says nothing differently and on the contrary, in our respectful submission, confirms that reading of Pearce’s Case, namely, that the analytical approach involves the step at which you adjust a sentence, as was done in Johnson for the purpose of avoiding common elements and that the concurrency issue is a separate issue and does not address or does not fully and sufficiently address that part. To that extent and in that important way Pearce’s Case is not about real time in prison.

HAYNE J: Just before you conclude, Mr Wells, this set of questions perhaps I should have raised earlier, but it goes to whether there should be a grant of leave. As the decision of the Full Court presently stands, if your client is convicted at trial, the sentencing judge will be bound to approach the sentencing task on the footing that the judge has power to backdate, is that right?

MR WELLS: Yes.

HAYNE J: The judge will either choose or not choose to do so if there is a trial at which your client is convicted, is that right?

MR WELLS: Yes.

HAYNE J: If the judge chooses to do so, that is, to backdate to the date asserted against you by the respondent in this Court and permitted by the decision of the Full Court, what is left as the double punishment argument?

MR WELLS: What is left is what I called our first route home, your Honour – that is, what I touched on in that last submission in response, that part of double punishment which is not related in any way at all to real time served in prison but related instead to what is the appropriate sentence.

HAYNE J: Yes, I see. On one view, that last question is wholly subsumed in the mandatory sentence for murder.

MR WELLS: Well, that presents the very dilemma, we submit. Your Honour will have our submission, and, of course, our case is there should be no trial, there should be no arraignment.

HAYNE J: I understand that, but in aid of that you espouse a position which, if adopted, would lead to a construction of the Act antithetical to the interests of your client and contrary to that which presently is held by the Full Court of this State to be the appropriate construction, indeed a construction which the respondent embraces in this Court.

MR WELLS: I am not sure if your Honour is seeking a response from me.

HAYNE J: No, but that is the consequence.

MR WELLS: If your Honour pleases. I am reminded, your Honour, as a postscript to my last point in reply, Johnson’s Case, that the submission that is put by my learned friend, the Solicitor-General, in relation to Pearce would have the result that Pearce would have been decided exactly the reverse way, if that were the correct understanding of Pearce, which our contention is that it is not. May it please the Court.

FRENCH CJ: Thank you, Mr Wells. I thank counsel for their assistance. The Court will reserve its decision and will adjourn to 4.00 pm in Court No 2 today.

AT 2.57 PM THE MATTER WAS ADJOURNED