[19] The Commonwealth has not introduced any legislation preventing a court that allows a Crown appeal against sentence from taking into account the fact that an unsuccessful respondent is to be sentenced a second time for the same crime. Under the Crimes Act 1914 (Cth), s 16A(1), when a court is determining the sentence to be passed for a federal offence, that court must impose a sentence 'that is of a severity appropriate in all the circumstances of the offence'. Prior to the enactment of s 402(4A), it was clear that 'double jeopardy' in the re-sentencing process following a successful Crown appeal was to be taken into account in favour of the respondent: R v Hayes (1987) 29 A Crim R 452; R v Clarke [(1996) 2 VR 500]; R v Harland-White (Tas CCA, 20 March 1997); Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321; Attorney-General v McDonald ([2002] TASSC 120; 137 A Crim R 401). In my view s 402(4A)(b) is inconsistent with the general requirement in s 16A(1) to impose a sentence that is of appropriate severity, and therefore does not apply to re-sentencing under Commonwealth legislation: Constitution, s 109. Counsel did not submit otherwise at the hearing of the appeal."
29 Two matters need to be addressed from this approach. The first concerns the application of s 109. The interaction between, and the order of operation of, s 109 of the Australian Constitution and s 79 (or s 68(1)) of the Judiciary Act has been discussed on a number of occasions: eg Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at 576 [38] and 586 [76]; Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 at 271 [61]-[63]; and see ONA at [70]-[137] per Neave JA. It is undoubted, as Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ stated in Agtrack at 271 [62], that the possible operation of s 109 is an anterior question to that of s 79 (or s 68(1)). Only a valid law of the State will be "picked up" by these latter provisions: Agtrack at 271 [61]. There is, in that sense, a sequential operation. Further, ss 68(1) and 79 only begin to operate when there is a court exercising federal jurisdiction.
30 Nevertheless, the sequential operation of s 109 and ss 68 and 79 is not mechanical. Necessarily, the first task is to understand the proper reach of the State law to see whether it can, or does, conflict with the Commonwealth law. Provisions of State statutes that deal with the exercise of judicial power need to be examined carefully for this purpose.
31 In R v Todoroski [2010] NSWCCA 75 at [8], I said (in comments that were not an expression of any concluded view) that "an Act of a State Parliament concerning how a court exercises power, on its face, cannot have anything to say about how a court (whether State or Commonwealth) exercises federal jurisdiction. That jurisdiction is of another polity, the Commonwealth". State Parliaments can, generally, legislate for their own courts: cf Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49. State Parliaments cannot, however, legislate for federal courts: John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; 129 CLR 65 at 79, 87 and 93; Pedersen v Young [1964] HCA 28; 110 CLR 162 at 167; Northern Territory v GPAO at 628 [195]. Further, a law of a State with respect, for instance, to limitation of actions, cannot operate, of its own force, in relation to a claim arising under a law of the Parliament: Agtrack at 270 [58]; Northern Territory v GPAO at 575 [33]; and John Robertson v Ferguson Transformers at 84. Similarly, here, a law of a State providing for relevant considerations in sentencing (whether after conviction at trial, or on appeal) cannot, of its own force, have anything to say about sentencing for an offence created by a law of the Commonwealth Parliament: LK and RK at [25] (in particular the noting of the erroneous analysis in Cheatle v The Queen [1993] HCA 44; 177 CLR 541) and [86]-[88]. A court sentencing a person for an offence created by Commonwealth law looks to law provided by the Constitution and the Commonwealth, not to State law operating of its own force, in order to undertake its task. It is at this point that State legislation and the common law are made relevant and applicable by the operation of the Judiciary Act, ss 68, 79 and 80.
32 It is unnecessary to discuss further the valid reach, if any, of State laws, of their own force, in connection with the exercise of federal jurisdiction by State courts: see, for example, Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214 at [7] and Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 at 134 [21].
33 Thus, here, I see no possible inconsistency between the Crimes Act, s 16A and the Crimes (A and R) Act, s 68A for the purposes of s 109, since s 68A is not to be construed as operating, of its own force to sentencing for criminal offences created by Commonwealth law.
34 Section 68A being the subject of possible operation of s 68(1) or s 79 (as an otherwise valid State law), the question of its operation, and whether it is picked up, is to be assessed by reference to its character as (surrogate) federal law: Kelly v Saadat-Talab at 307-308 [3] and the cases there cited and discussed.
35 Thus, I respectfully disagree with the approach adopted by the Court in Talbot. I am sufficiently persuaded, if I may respectfully say, of the error of that approach to depart from it: Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [274]-[295]. I note that in reasons published on 17 August 2010 the Western Australian Court of Appeal reached the same conclusion in R v Baldock [2010] WASCA 170.
36 The place of s 68A in a Commonwealth appeal is to be assessed by reference to the Judiciary Act ss 68(1), 79 and 80 and any existing Commonwealth law, here, the Crimes Act, s 16A, not by anterior reference to inconsistency under s 109 of the Australian Constitution.
37 A second difficulty with the reasoning in Talbot is the conclusion that s 68A is inconsistent (in the sense described in the High Court authorities discussed in Kelly v Saadat-Talab at 308-310 [4]-[11]), with s 16A(1).
38 It is necessary, at the outset, to construe both provisions (Commonwealth law and surrogate Commonwealth law) to ascertain whether there is inconsistency or "actual contrariety": Putland at 179 [7] and 189 [40]; Northern Territory v GPAO at 587-588 [79]-[80]; Austral Pacific at 144 [17]; and see generally Kelly v Saadat-Talab [4]-[11].
39 Section 68A seeks to remove from a court's consideration in a prosecution appeal one human aspect that the common law had prescribed to be taken into account in sentencing on Crown appeals: an element of (presumed) distress and anxiety.
40 Section 16A(1), on the other hand, is directed to the appropriateness of the sentence and its severity in all the circumstances of the offence. The phrase "circumstances of the offence" is not apt to encompass the "circumstances of the offender" at the time of a prosecution appeal. Section 16A(1) is not directed to double jeopardy; rather it is directed to the appropriateness or proportionality of the sentence to the circumstances of the offence. No doubt, as the cases referred to by Blow J make clear, double jeopardy has been taken into account in the sentencing process as part of the common law: see also JW. To the extent this has occurred in appeals in respect of federal offences, this is so because the concept is part of the common law of Australia applied by the Judiciary Act, s 80 to the resolution of the controversy, not because double jeopardy is a "circumstance of the offence", the object of the command in s 16A(1).
41 Section 16A(2) is, however, more relevant. It is not, in its terms, an explication of s 16A(1); though, in part, it deals with matters that can be seen to be "circumstances of the offence": eg s 16A(2)(a), (c), (d), (e) and (h). Other considerations in s 16A(2) are plainly not "circumstances of the offence": eg 16A(2)(j), (n) and (p). Further, s 16A(2) can be seen to be directed to the whole of the task to which s 16A(1) is directed ("determining the sentence … or the order to be made …").
42 Section s 16A is an attempt by the Commonwealth Parliament to identify matters which, if relevant, must be taken into account. It was not intended either to cover the field or to create a code of features being the exclusive universe of considerations in sentencing. This is clear from the opening words of s 16A(2).
43 Section 16A was passed against the background of the common law and upon the assumption that common law principles would apply: Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [15]; Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470 at 489 [81]; and DPP (Cth) v El Karhani (1990) 21 NSWLR 370.
44 In Lodhi at [81], Spigelman CJ said:
"[81] The very generality of the language - 'a severity appropriate in all the circumstances of the offence' - indicates the breadth of the discretion conferred upon the sentencing judge. In this formulation the Parliament has indicated that the sentencing principles developed at common law, rather than the various provisions in State legislation, should apply to sentencing for Commonwealth offences. (See Johnson v The Queen [[2004] HCA 15] (2004) 78 ALJR 616 at [15].)"
45 In Johnson at [15], Gummow, Callinan and Heydon JJ said:
"[15] The proposition contained in the first of the appellant's grounds is largely uncontroversial: that except to the extent stated in ss 16A and 16B of the Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable. That common law principles may apply follows from the use of the words 'of a severity appropriate in all the circumstances of the offence ...' in s 16A(1) and the introductory words 'In addition to any other matters ...' to s 16A(2) of the Act."
46 Putland, however, made clear that the Crimes Act, Part 1B did not set out a code, or evince a Parliamentary intention to make it an exclusive source of law, for sentencing of federal offenders, so as to render State law inapplicable: Putland at 185 [22]-[24] and 193 [53]-[54].
47 Thus, the appropriate analysis is whether State law is, or is not, to be picked up by ss 68, 79 and 80 of the Judiciary Act. How any particular State law concerning sentencing is to be seen as affecting (or not, as the case may be) the command in s 16A (or Part 1B) will be a matter for individual analysis: cf Wong v The Queen [2001] HCA 64; 207 CLR 584 at 597, 609-610, 632-633 and 643. If the surrogate federal law (here, s 68A) is contrary to the Commonwealth law (here, s 16A) by, for instance, impliedly repealing or qualifying it in a material respect, it will not be "picked up". This kind of "actual contrariety" was discussed by Fullagar J in Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268 at 275, cited in Putland at 189 [40] and discussed in Kelly v Saadat-Talab at 308-309 [6]-[8].
48 It was submitted by the respondent that this kind of inconsistency or contrariety arose here from the terms of s 16A(2)(m) and s 68A. It was submitted that "mental condition" in s 16A(2)(m) is wider than medically diagnosed or clinically recognised condition, or mental illness or mental disorder. It meant, it was submitted, the mental state of the person.
49 These submissions should be accepted. Section s 16A(2) should be read widely, not narrowly. The Parliament was evidently attempting to identify (albeit non-exhaustively) a broad range of considerations to be taken into account in reaching a just and appropriate sentence. Section 16A(2)(m) is apt to encompass important aspects of the offender. The phrase "mental condition" should not be read as requiring some requirement of a diagnosable clinical state. For instance, here, the respondent swore an affidavit that he was depressed. That might not be particularly influential in any sentencing exercise. Nevertheless, it is evidence that describes one aspect of his mental condition, unless s 16A(2)(m) is limited to a recognised medical condition, in which case medical evidence of the character and gravity of the depression would be necessary to ascertain whether it was of a seriousness or a kind as to qualify as a medical condition. Section 16A(2)(m) should not be narrowly construed in this way.
50 It was submitted by the DPP that the phrase "mental condition" in s 16A(2)(m) related to questions of culpability, deterrence, hardship and the like to which a mental condition was relevant in general law sentencing principles and practice. Reference was made to R v Pham [2005] NSWCCA 314 at [34] ff.
51 To the extent that that submission was intended to equate the phrase "mental condition" with mental disorder or mental illness, it should be rejected. The phrase is not a term of art, but has a wider meaning though, of course, the meaning of the phrase falls to be considered in its context: The Queen v Kiltie (1986) 41 SASR 52 at 61 (King CJ), 64-66 (Legoe J) and 70-71 (Johnston J). Its context, here, is the broad wording of s 16A(2)(m) concerned with the attributes of the offender in a provision directed to identifying the appropriate or proportionate sentence.
52 This being the reach of the Commonwealth law (s 16A), is the putative surrogate federal law (s 68A) inconsistent with, or contrary to, it? The answer is that it is. The Chief Justice in JW discussed the nature of double jeopardy. Section 68A is directed to stress and anxiety to which all respondents to a Crown appeal are presumed to be subject. In other words, the offender's ("the person's" for s 16A(2)(m)) mental condition (in the wide sense that I would read it) is presumed to be affected by stress and anxiety. Stress and anxiety are part of the mental condition of the person.
53 To permit s 68A to operate would be contrary to, and impliedly repeal, in part, s 16A(2)(m), removing from the Court's consideration a part of the person's mental condition, even if it only be presumed by the common law to exist. Thus, in my view, s 68A is not picked up in, and for the purposes of, the sentencing task here to be undertaken by the appeal court. That task is not limited to the ascertainment of the sentence, but extends to the ascertaining of the correct order on the appeal. Thus, s 68A is not picked up insofar as it might have an operation described in JW at [141(iii) and (iv)]. The question whether s 68A is picked up in so far as it might have an operation described in JW at [141 (v)] can be left to one side as unnecessary and inappropriate to decide in the absence of submissions.
54 I do not think the inconsistency is avoided by stressing the presumed nature of the distress and anxiety. It is a presumption of the reality of the distress and anxiety. To permit s 68A to operate and then to permit (because of s 16A(2)(m)) evidence of actual distress and anxiety at being sentenced a second time and losing the benefit of the first sentence would be both somewhat artificial and also apt to give s 68A a meaning and effect different in Commonwealth Crown appeals to State Crown appeals.
55 If the above view that the correct framework of analysis is the operation of the Judiciary Act rather than s 109 of the Australian Constitution be wrong, the direct inconsistency between s 16A(2)(m) and s 68A and the impairment of the former by the latter would amount to inconsistency for the purposes of s 109. No detailed discussion of relevant principle is required once the conclusion is reached that a State law (on this hypothesis) is directly inconsistent with, and impairs the intended purpose of, the Commonwealth law: eg The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation ("GMAC case") [1977] HCA 34; 137 CLR 545 at 563-564; Victoria v Commonwealth [1937] HCA 82; 58 CLR 618 at 620.
56 Given that mine is a minority view, it is unnecessary to consider whether, as a matter of precedent, I would defer to the reasoning in Baldock (with which I otherwise generally agree) given that the argument based on s 16A(2)(m) was not propounded in Baldock.