Rosina Mcmillan v Leonard David Pryce [NTR]

• Jurisdiction: Northern Territory
• Judge: Martin CJ,Angel J,Mildren J
• Judgment Date: 29 August 1997
• Docket Number: No. 742 of 1997
• Court: Supreme Court
• Date: 29 August 1997

[1997] 115 NTR 19

IN THE FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Martin CJ, Angel and Mildren JJ

No. 742 of 1997

Rosina Mcmillan

and

Leonard David Pryce

Counsel for the Appellant: R. Wild QC, A. Fraser

Counsel for the Respondent: C. McDonald QC, P. McNab

Sentencing Act 1995 (NT) s78A, s78B — Sentencing Act (No2) 1996 (NT).

Criminal law — sentence —

Martin CJ

1 For the reasons given by Mildren J. I agree with the answers he proposes.

Angel J

2 I agree with Mildren J that it is unnecessary to answer the first, sixth and seventh questions raised in the stated case and that the answer to the second and third questions is ‘No’. Indeed both parties submitted that those questions should be answered in the negative, and I agree.

3 I am, however, of the view that questions four and five should be answered ‘Yes’. Property offences are defined by s3(1) of the Sentencing Act as those specified in the First Schedule. The First Schedule refers to offences by reference to sections in the Criminal Code. Those offences were known to the law before 8 March 1997 and were all able to be described as property offences before 8 March 1997. In my opinion the Sentencing Act draws no line between previous convictions before and previous convictions after 8 March 1997. None of this is to say that retrospective effect is to be given to the Sentencing Act amendments. A person sentenced under the new amendments is not being punished for having done an act which at the time of its commission was prescribed by a different sentencing regime. An offender found guilty of an offence that occurs after the Sentencing Act amendments came into operation may, if he has already been found guilty in the past, be punished as he could not have been before the amendments. The Sentencing Act amendments merely bring into play an offender's previous history in the event he offends after 8 March 1997. It has no retrospective operation. I think the matter is governed by such cases as R v Austin[1913] 1 KB 551; Page v Winkler (1975) 12 SASR 126, Hoppo v Samuels (1978) 18 SASR 277 and Staska v GMH Pty Ltd(1970) 123 CLR 673 at 675 (PC).

4 Unlike Mildren J, I do not think s78A is ambiguous in this regard. If I am wrong in this, and there is some ambiguity, I particularly note and agree with the reasoning of the Full Court of South Australia in Hoppo v Samuels (supra) at 280, which reasoning I think is applicable here.

5 There the Court said:

6 ‘If Mr Mangan's submission were correct, it would mean that in enacting the 1976 amendments Parliament intended to wipe the slate clean in respect of offences against the three sections which had been committed during the five years immediately preceding the commencement of the amending Act. This result militates against the policy evident in the amendments, namely to deter drinking drivers by visiting offences against these sections with more severe penalties. Even, therefore, if there were any ambiguity in the construction of the legislation, this consideration would lead us to reject the construction put forward to Mr Mangan. In our view, however, there is no ambiguity in the legislation. We emphasize that what are to be taken into account are “offences previously committed” against the respective sections; and, as we have pointed out, the offences are the same, whether committed before or after 1st March, 1976. We would be of this opinion even if the form of the amending legislation had been to repeal and re-enact the respective subsections.’.

7 I would answer the questions reserved as follows:

8 1. Unnecessary to answer. 2. No. 3. No. 4. Yes. 5. Yes. 6. Unnecessary to answer. 7. Unnecessary to answer.

Mildren J

9 On 3 April 1997, the respondent laid an information against the applicant containing two charges, the first being a charge of unlawful entry of a dwelling house with intent to commit an offence therein (contrary to s 213 of the Criminal Code), and the second being a charge of unlawful damage to property, (contrary to s 251 of the Criminal Code). Both of these offences were committed on 2 April 1997. The applicant pleaded guilty before the learned Magistrate who found the offences proved. The maximum sentences available are 2 years imprisonment for each of these offences.

10 In December 1995 and March 1996, the applicant committed 5 offences which included two offences of unlawful entry with intent to commit a crime (s 213), and three stealing offences (s 210). These offences were not dealt with until 13 March 1997. On that date another Magistrate recorded convictions in respect of those offences and imposed community service orders.

11 On 8 March 1997, the Sentencing Amendment Act (No. 2) 1996 came into force. The amending Act introduced a mandatory minimum sentencing regime for certain kinds of property offences, vide ss 78A and 78B. Those provisions have already been discussed in this Court's decision in Trenerry v Bradley (unreported, delivered the same time as this one, available in SCALEplus).

12 Following the findings of guilt, the learned Magistrate stated a case to the Supreme Court which raises the following questions.

13 1. ‘Whether, on a true construction of s 78A of the Sentencing Act, the phrase ‘order the offender to serve a term of imprisonment’, (thrice used) precludes the making of further orders suspending the term wholly or partly, or suspending the term on the offender entering into a Home Detention Order?’

14 2. ‘Whether on a true construction of Section 78A of the Sentencing Act, the term ‘property offence’ [where first appearing in sub-sections (1), (2), (3) and (4)] includes an offence committed before 8 March 1997?’

15 3. ‘Whether, on a true construction of Section 78A of the Sentencing Act, the term ‘property offence’ [where first appearing in sub-sections (1), (2), (3) and (4)] includes an offence committed before 8 March 1997 for which the defendant was found guilty on or after 8 March 1997?’

16 4. ‘Whether on a true construction of Section 78A of the Sentencing Act, the words ‘before been found guilty of a property offence’ may include an offence committed before 8 March...