Putland v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Heydon JJ.,Kirby J.,Callinan J.
• Judgment Date: 12 February 2004
• Neutral Citation: 2004-0212 HCA B,[2004] HCA 8
• Docket Number: D11/2003
• Court: High Court
• Date: 12 February 2004

[2004] HCA 8

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Callinan AND Heydon JJ

D11/2003

Robert John Putland

Appellant

and

The Queen

Respondent

Representation:

D Grace QC with R R Goldflam for the appellant (instructed by Northern Territory Legal Aid Commission)

D J Bugg QC with G C Fisher for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Intervener:

D M J Bennett QC, Solicitor-General of the Commonwealth, with A R Beech intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Crimes Act 1914 (Cth), s 4K, Pt 1B.

Judiciary Act 1903 (Cth), s 68.

Sentencing Act (NT), s 52.

Putland v The Queen

Criminal law — Sentencing — Offences against laws of the Commonwealth — Where offender tried in Territory court for indictable offences against laws of the Commonwealth — Judiciary Act 1903 (Cth), s 68(1) — Where Territory legislation permitted aggregate sentences for indictable offences — Whether aggregate sentences were permissible in the case of Commonwealth offences.

Constitutional law — Discrimination — Whether Territory legislation permitting aggregate sentencing resulted in constitutionally impermissible discrimination between federal offenders.

Words and phrases — ‘so far as they are applicable’.

ORDER

Appeal dismissed.

1 Gleeson CJ. The appellant was charged in the Supreme Court of the Northern Territory with offences against the Crimes Act 1914 (Cth) (‘the Crimes Act’) and offences against the Bankruptcy Act 1966 (Cth). All were indictable offences. The Supreme Court was exercising federal jurisdiction. The appellant pleaded guilty. Pursuant to Northern Territory legislation referred to below, the sentencing judge imposed a single, aggregate sentence of imprisonment for four years, and ordered that the appellant be released after serving 12 months upon entering into a bond to be of good behaviour for three years. The appellant appealed against the sentence to the Northern Territory Court of Criminal Appeal. Most of the grounds of appeal are presently immaterial. The appeal was dismissed. The one ground of appeal pursued in this Court is that the sentencing judge did not have power to impose an aggregate term of imprisonment. The Court of Criminal Appeal (Martin CJ, Mildren and Riley JJ) held that, by operation of s 68 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’), the law of the Northern Territory permitting an aggregate sentence applied, and that the sentencing judge had the power he purported to exercise. In this respect, the Court of Criminal Appeal followed an earlier decision of the South Australian Court of Criminal Appeal, R v Jackson1. South Australia also has legislation which permits aggregate sentences in the case of indictable offences.

The legislation

2 The Sentencing Act (NT) (‘the Sentencing Act’) provides:

‘52 (1) Where an offender is found guilty of 2 or more offences joined in the same information, complaint or indictment, the court may impose one term of imprisonment in respect of both or all of those offences but the term of imprisonment shall not exceed the maximum term of imprisonment that could be imposed if a separate term were imposed in respect of each offence.’ (emphasis added)

3 Sub-sections (2) and (3) impose presently irrelevant qualifications on the power given by s 52. The principles according to which such a statutory power is to be exercised, and their relationship with the sentencing principle of totality, were considered by the South Australian Court of Criminal Appeal in the case of Major2. Since we are not concerned with any issue as to the severity of the sentence in the present case, it is unnecessary to pursue that topic.

4 Section 68 of the Judiciary Act provides, so far as presently relevant, that the laws of a State or Territory respecting the arrest and custody of offenders or

persons charged with offences, and the procedure for their trial and conviction on indictment, shall apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by the section. The operation of related provisions of s 68 concerning appeals was recently considered by this Court in The Queen v Gee3. The background to the section is the obvious circumstance that State and Territory laws concerning the matters to which the section relates may differ. The necessary consequence is that, in certain respects, those differences will apply as between federal offenders, depending upon where they are tried. In the present case, the sentencing judge was exercising jurisdiction conferred by s 68(2). Northern Territory laws respecting the procedure for trial and conviction on indictment were at least potentially picked up and applied as federal law by s 68(1). Sentencing laws come within that description 4. In Leeth v The Commonwealth5, Mason CJ, Dawson and McHugh JJ referred to an observation by Dixon J 6 that s 68 disclosed a policy ‘to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State’ and that it was ‘no objection to the validity of such a provision that the State law adopted varies in the different States’. They continued:

‘Thus the administration of the criminal law of the Commonwealth is organized upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried. And if a person is convicted of a federal offence and sentenced to a term of imprisonment, he will ordinarily serve that term in a State prison in the State in which he is convicted. Prison systems differ significantly from State to State, but that is something which, in relation to federal offenders, is contemplated by s 120 of the Constitution.’

5 It may be added that it is not uncommon for an accused person, standing trial in a State court, to be charged with both State and federal offences. In drug cases, for example, an accused may be charged with federal offences of importing, and State offences of trafficking. Not only are federal offenders imprisoned with State offenders; the same person may be both a State and a federal offender. References to uniformity of treatment of federal offenders may be misleading unless practical considerations of this kind are taken into account.

6 There is no justification for distinguishing, as the argument for the appellant seeks to do, between the procedures referred to in s 68(1) and powers. Paragraphs (a) to (d) of s 68(1) refer to procedures of various kinds which typically involve or create powers.

7 The laws of a State or Territory to which s 68(1) refers apply ‘so far as they are applicable’. Although there is not in s 68, as there is in s 79 of the Judiciary Act, an express qualification to the operation of the provision by the use of the words ‘except as otherwise provided by the Constitution or the laws of the Commonwealth’, in the context of a problem such as the present there is little, if any, functional difference between the two forms of qualification. The meaning of ‘otherwise provided’ was considered in Northern Territory v GPAO7. Relevantly for present purposes, s 52 of the Sentencing Act would not be picked up and applied by s 68 if a Commonwealth law expressly or by implication made contrary provision, or if there were a Commonwealth legislative scheme relating to the sentencing of the appellant which was ‘complete upon its face’ and can ‘be seen to have left no room’ for the operation of s 52 8. Since the appellant relies upon both kinds of other provision, it is necessary to examine in some detail the Commonwealth laws that are said to have that effect.

8 Part 1A of the Crimes Act includes s 4K, which relevantly provides:

‘4K …

• (3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

• (4) If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.’

9 The similarity between s 52 of the Northern Territory Sentencing Act and s 4K(4) of the Commonwealth Crimes Act is apparent, but there is one critical difference. Sub-section (4) of s 4K is expressly related to sub-s (3). It was held by the Court of Appeal in Victoria in R v Bibaoui9, and it was common ground in his appeal, that the sub-sections do not apply to trials on indictment, but apply only to summary proceedings. It was explained by Tadgell JA in that case 10 that sub-s (3) was necessary in the case of summary proceedings, but unnecessary in the case of indictments. There was a background of State and Territory laws which made provision for the joinder of indictable offences, but did not make provision for joinder of summary offences 11. The Court of Appeal held there was every reason to give the expression ‘information, complaint or summons’ its ordinary meaning which, as Ormiston JA said, referred to ‘well known processes for commencing criminal proceedings in summary jurisdictions’ 12. There is no reason to doubt the correctness of Bibaoui.

10 The above provisions were originally enacted as s 45B(2) and (3) of the Acts Interpretation Act 1901 (Cth), inserted by the Acts Interpretation Amendment...