PNJ v The Queen

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Crennan,Kiefel JJ
• Judgment Date: 10 February 2009
• Neutral Citation: [2009] HCA 6,2009-0210 HCA A
• Docket Number: A8/2008
• Court: High Court
• Date: 10 February 2009

[2009] HCA 6

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Crennan and Kiefel JJ

A8/2008

Pnj

Applicant

and

The Queen

Respondent

Representation

W J N Wells QC with H M Heuzenroeder for the applicant (instructed by George Mancini & Co)

M G Hinton QC, Solicitor-General for the State of South Australia with H H L Duong for the respondent (instructed by Director of Public Prosecutions (SA))

Criminal Law Consolidation Act 1935 (SA), s 11.

Criminal Law (Sentencing) Act 1988 (SA), ss 30, 32, 32A.

PNJ v The Queen

Criminal law — Jurisdiction, practice and procedure — Stay of proceedings — Abuse of process — Applicant convicted of wounding with intent to cause grievous bodily harm and sentenced to 7 years' imprisonment with 4 years' non-parole period — Sentence and non-parole period to commence on date applicant first taken into custody — Victim since deceased — Applicant now charged with murder after serving most of sentence for wounding with intent to cause grievous bodily harm — Generally court must impose mandatory minimum non-parole period of 20 years if convicted — Whether proceedings on information alleging murder should be permanently stayed as abuse of process — Whether administration of justice brought into disrepute — Whether prosecution for murder unjustifiably oppressive — Whether conviction for murder would constitute double punishment for conduct — Whether double punishment to be determined by reference only to non-parole period — Fixing of non-parole period.

Criminal law — Jurisdiction, practice and procedure — Stay of proceedings — Abuse of process — Backdating sentence and non-parole period — Whether any double punishment alleviated or eliminated by exercise of any power to backdate — Whether non-parole period could be backdated to commence at date applicant first taken into custody — Whether ‘time in custody in respect of an offence’ included time spent in custody for wounding with intent to cause grievous bodily harm — Whether backdating commencement of sentence for murder equivalent to ordering service of that sentence concurrently with sentence for wounding — Relevance of legislative intention.

Criminal law — Jurisdiction, practice and procedure — Stay of proceedings — Abuse of process — Court must impose mandatory minimum non-parole period of 20 years unless satisfied that ‘special reasons’ exist for fixing shorter period — Court may have regard to a plea of guilty in deciding whether ‘special reasons’ exist — Whether applicant denied free choice about plea in answer to murder charge, because if convicted on plea of not guilty, applicant subject to mandatory minimum non-parole period, whereas if convicted on guilty plea, applicant can argue ‘special reasons’ exist for fixing shorter non-parole period.

Words and phrases — ‘special reasons’, ‘time in custody in respect of an offence’.

ORDER

Special leave to appeal refused.

French CJ, Gummow, Hayne, Crennan and Kiefel JJ. In 2003, after a trial by judge alone in the Supreme Court of South Australia, the applicant was convicted of wounding with intent to cause grievous bodily harm. The trial judge found that the applicant had stabbed the victim in the head, causing the victim brain damage and serious disability. The applicant was sentenced to seven years' imprisonment to commence on the day in September 2002 he was first taken into custody. A non-parole period of four years was fixed and that period, too, was to commence on the day the applicant was first taken into custody.

2 The victim died in 2004. The applicant now stands charged with the murder of the victim. The year-and-a-day rule, which once fixed a temporal limit to criminal responsibility for homicide, was abolished in South Australia by the Criminal Law Consolidation (Abolition of Year-and-a-day Rule) Amendment Act 1991 (SA). The applicant's argument that he has a plea in bar to the charge of murder has been rejected at first instance 1 and on appeal to the Full Court of the Supreme Court of South Australia 2 sitting as the ‘Court of Criminal Appeal’ 3 and an application for special leave to appeal to this Court was refused 4. He now contends that proceedings on the information alleging murder should be permanently stayed as an abuse of process. This contention was rejected at first instance 5 and on appeal to the Full Court 6. The applicant now seeks special leave to appeal to this Court. The application has been argued as on an appeal.

3 It is not possible to describe exhaustively what will constitute an abuse of process 7. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics 8:

In this case the applicant placed chief weight upon the third of these characteristics but also submitted that he will be subjected to oppression if he is required to plead in answer to the charge.

• (a) the invoking of a court's processes for an illegitimate or collateral purpose;

• (b) the use of the court's procedures would be unjustifiably oppressive to a party; or

• (c) the use of the court's procedures would bring the administration of justice into disrepute.

4 The applicant alleges that if he is convicted of murder he will be doubly punished for his conduct. He alleges that he would be doubly punished because when sentenced for murder he would have largely served the term of imprisonment for wounding with intent to cause grievous bodily harm to the victim and any non-parole period fixed upon his conviction for murder could not be fixed to begin at the time that he began the sentence for wounding with intent. He further alleges that he is denied a free choice about his plea in answer to the charge of murder because, if he pleads not guilty but is convicted, he must be sentenced in a way that fixes a non-parole period of not less than 20 years whereas, if he pleads guilty, he may argue for a shorter non-parole period.

5 The applicant's arguments directed attention to what will happen if he is convicted of murder. That is, the premise for his arguments was that it may be established at trial, or by his entering a plea of guilty, that the applicant caused the death of the victim by his assault upon him with intent to cause at least grievous bodily harm. His complaint is that, having been sentenced to, and

having served the greater part of, a term of seven years' imprisonment for his wounding the victim, he should not now be prosecuted for murder because, if he is guilty of murder, he will suffer the punishment that is fixed by law for that crime.

6 Consideration of the arguments about double punishment which the applicant agitates in this matter must begin from an examination of the operation of several intersecting legislative provisions. First, s 11 of the Criminal Law Consolidation Act 1935 (SA) provides that ‘[a]ny person who commits murder shall be guilty of an offence and shall be imprisoned for life’. Next it is necessary to take account of amendments made in 2007 to the Criminal Law (Sentencing) Act 1988 (SA) (‘the Sentencing Act’) by the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) (‘the 2007 Act’).

7 The amendments made by the 2007 Act apply whether the offence to which a sentence of imprisonment or non-parole period relates was committed before or after the commencement of the relevant amendments 9. The amendments made by the 2007 Act included amendments to s 32 of the Sentencing Act prescribing a mandatory minimum non-parole period in respect of certain offences. In the case of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period was fixed 10 as 20 years. Section 32A of the Sentencing Act (as introduced by the 2007 Act) provides that a mandatory minimum non-parole period prescribed in respect of an offence represents the non-parole period for an offence ‘at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies’ 11.

8 Under the Sentencing Act, as amended by the 2007 Act, a court can fix a non-parole period that is shorter than the prescribed period only ‘if satisfied that special reasons exist’ for doing so 12. The Sentencing Act, as amended, further

provides that in deciding whether special reasons exist, the court must have regard to only three matters 13:

• ‘(a) the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;

• (b) if the offender pleaded guilty to the charge of the offence — that fact and the circumstances surrounding the plea;

• (c) the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation’.

9 The applicant submitted, in summary, that:

• (a) ‘the minimum non-parole period of 20 years … would result in irremediable double punishment of the applicant’;

• (b) the double punishment thus imposed could not be alleviated by the exercise of any power to backdate the commencement of the non-parole period, or at least any backdating to a time before the victim died; and

• (c) on his arraignment the applicant would be denied the exercise of a free choice as to his plea because he would be denied the opportunity of alleging the existence of ‘special reasons’ to fix a shorter non-parole period unless he pleaded guilty.

10 The applicant's contentions about double punishment assumed that the only relevant aspect of any sentence passed upon him would be the fixing of a non-parole period of not less than 20 years. That assumption may not be right. The better view would appear to be that questions of double punishment may not be determined by having regard to only part of the sentence that is imposed.

11 In South...