Garth v R [2017] NSWDC 469 | Case summary

Garth v R [2017] NSWDC 469 | Case summary | Zoe

Judgment

HIS HONOUR: The applicant, Hugh Bacalla Garth, was found guilty by a jury on 24 May 2017 in respect to the offence of assault causing death while intoxicated pursuant to s 25A(2) of the Crimes Act 1900 (NSW).
The applicant has submitted that the relevant provisions in the Crimes Act are unconstitutional and therefore invalid. I have been provided with written submissions dated 30 August 2017 and further supplementary written submissions dated 1 September 2017. I have also had the benefit of oral submissions by counsel.
It should be noted by way of background that the applicant, prior to being arraigned, applied to have the original indictment containing the same offence quashed on the basis of s 25B being constitutionally invalid. The Judge at first instance declined to consider such an order, and the decision of the Judge at first instance was upheld by the Court of Criminal Appeal in Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203. I have been provided with a copy of that decision, together with the applicant's written submissions to that Court and the written submissions provided to the Judge at Parramatta District Court at first instance.
According to counsel's written submissions, there are three issues for determination, being: 1. Whether the correct construction of s 25B is that it is a disabling provision or a legislative guidepost; 2. Whether, regardless of the correct construction, s 25B is unconstitutional; and 3. If s 25B is unconstitutional, whether it is severable from s 25A(2). In other words, whether s 25A(2) is also invalid.
The Solicitor‑General for the State of New South Wales, appearing for the Attorney‑General of New South Wales intervening, has provided written submissions outlining the basis for the validity of s 25B.
Counsel for the applicant relied on much of what was submitted previously in the District Court and then in the Court of Criminal Appeal. Counsel submitted, at par (2): "Section 25B is invalid because of the repugnant manner in which it selectively modifies the application of the Crimes (Sentencing Procedure) Act 1999 (NSW)…and any other Act or law relating to sentencing, to the sentencing for offences under s 25A(2)."
Essentially, it was submitted that s 25B, in providing a mandatory minimum penalty, fixes a limit upon the "authority" of the Court to impose a sentence. In effect, by stipulating a mandatory minimum penalty it operates as a "disabling provision that partially overrides or supplants the process of sentencing that would otherwise be observed in accordance with the [Crimes (Sentencing Procedure) Act] and any other Act or law relating to sentencing."
Counsel for the applicant referred to s 18 of the Crimes Act which defines both 'murder' and 'manslaughter'. Section 19A sets out the punishment for murder, whereas s 24 sets out the punishment for manslaughter. Sections 25A and 25B were inserted within the same division of the Crimes Act and came into effect on 31 January 2014. Section 25A(9) provides that "[s]ection 18 does not apply to an offence under subsection (1) or (2)." Section 25A relevantly provides: 25A Assault causing death (1) A person is guilty of an offence under this subsection if: (a) the person assaults another person by intentionally hitting the other person with any part of the person's body or with an object held by the person, and (b) the assault is not authorised or excused by law, and (c) the assault causes the death of the other person. Maximum penalty: Imprisonment for 20 years. (2) A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated. Maximum penalty: Imprisonment for 25 years. …
Section 25B(1) prescribes a mandatory minimum penalty of eight years' imprisonment for an offence under s 25A(2). The section provides: 25B Assault causing death when intoxicated - mandatory minimum sentence (1) A court is required to impose a sentence of imprisonment of not less than 8 years on a person guilty of an offence under section 25A (2). Any non-parole period for the sentence is also required to be not less than 8 years. (2) If this section requires a person to be sentenced to a minimum period of imprisonment, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period). (3) Nothing in this section (apart from subsection (2)) affects the provisions of the Crimes (Sentencing Procedure) Act 1999 or any other Act or law relating to the sentencing of offenders. …
The written submissions refer to s 19B of the Crimes Act with respect to the offence of murder of police officers, which carries a mandatory sentence of imprisonment for life and leaves no sentencing discretion to a judge: see R v Barbieri [2014] NSWSC 1808. However, it was submitted that "the confining of a discretion is not necessarily on stronger constitutional grounds than a complete abrogation of discretion." It was submitted that the confining of a judicial discretion "might be such that the Court is required to exercise the remaining discretion in a manner that is repugnant to the judicial process".
Counsel for the applicant further submitted: "Secondly, and relatedly, there is a distinction between removing a judicial discretion and requiring a Court to participate in the charade of exercising a discretion when the discretion is incapable of being exercised judicially: cf South Australia v Totani (2010) 242 CLR 1 at [18] (French CJ), [459] (Kiefel J)."
Counsel for the applicant submitted that a further question arises when considering the operation of s 25B: does the mandatory minimum period of imprisonment operate as a "minimum end of a sentencing 'yardstick'" or, as was submitted, operate as a "disabling provision that partially overrides or supplants the sentencing procedure that would otherwise follow from the [Crimes (Sentencing Procedure) Act]"?
Counsel submitted that s 25B operates as a disabling provision. In doing so, reliance was placed on s 25B(3) which expressly provides that, apart from s 25B(2), s 25B does not affect the operation of the provisions of the Crimes (Sentencing Procedure) Act or any other Act or law relating to sentencing. Therefore, it was submitted that s 25B(2) contemplates a sentence in accordance with ordinary sentencing principles; however, "it stipulates that the Court is not authorised to impose that sentence". The consequence is that the sentencing court is directed to follow the existing law relating to sentencing of offenders without regard to the minimum penalty as prescribed by s 25B(1), which is to be applied only at the final point of sentencing.
The applicant contended that s 25B so construed is constitutionally invalid and referred to, and distinguished, the High Court decision of Magaming v R (2013) 252 CLR 381; [2013] HCA 40 (Magaming). In that case the majority rejected the challenge based on Ch III of the Commonwealth Constitution to the provision of a mandatory minimum term of imprisonment prescribed by s 236B(3)(c) of the Migration Act 1958 (Cth). It was accepted that the decision of Magaming proceeded on the basis that the mandatory minimum penalty "fixe[d] one end of the relevant yardstick": Magaming at [48] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). It was submitted, however, that the peculiar interaction between s 25B of the Crimes Act and the Crimes (Sentencing Procedure) Act and other general sentencing principles was not present in that case.
Because s 25B(1) operates as a disabling provision as opposed to a sentencing yardstick, it was submitted that it has the effect of distorting the sentencing discretion by imposing, in some instances, sentences for offenders who are otherwise deserving of a lesser sentence than eight years' imprisonment. It also deprives the offender of the full benefit of mitigating factors, such as a plea of guilty or assistance to law enforcement authorities. It was submitted that, as a consequence, it "distorts the sentencing discretion in a manner that is contrary to the fundamental principle of equal justice" and is therefore "repugnant in a fundamental degree to the judicial process": International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [58] (French CJ), [88]-[98] (Gummow and Bell JJ), [155]-[160] (Heydon J).
Lastly, it was further submitted that if the Court were to construe the operation of s 25B as creating the lower end of the sentencing yardstick, that would distort the sentencing process in the sense that it compresses the range of available sentences. As a consequence, there would be no flexibility at the bottom end of the sentencing range which, again, would be contrary to the principle of equal justice.
Counsel for the applicant, in his written submissions, referred to the earlier decision of Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203 and submitted that it was a binding decision on this Court, which counsel submitted determined that s 25B is a disabling provision. Counsel referred to the judgment of Bathurst CJ, with whom Beazley P and Simpson JA agreed. His Honour noted, at [24]: "Section 25B does not impose a punishment. Rather, it operates to impose a constraint on the sentence which can be imposed." Later, his Honour noted, at [30]: "The legislature deliberately separated the offence creating provision from what I have described as the constraint. To read the section in the manner suggested by the applicant would be contrary to that express legislative intention."
It was therefore submitted that the decision held that s 25B does not create a penalty, but merely a constraint on the Court's power to impose a sentence under s 25A(2).
In response, the Solicitor‑General, in his written submissions, noted at par (9): "The defendant's constitutional challenge invokes the principle in Kable v Director of Public Prosecutions NSW [1996] HCA 24; (1996) 189 CLR 51 [(Kable)]."
That relevant principle is that the Parliaments of the States and Territories may not legislate to confer powers on State or Territory Courts which are repugnant to, or incompatible with, the exercise of the judicial discretion of the Commonwealth.
In North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41, French CJ, Kiefel and Bell JJ distilled the Kable principle into seven propositions, the first being, at [39]: "A State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system."
The remaining propositions broadly set out the parameters of the institutional integrity of a State court and the circumstances in which a State legislature impermissibly enacts a law that is incompatible with that principle.
As the Solicitor‑General correctly observed, at par (17): "It is also well-established that legislation does not impermissibly interfere with the exercise of Chapter III power simply because it curtails, or even removes entirely the Court's sentencing discretion": see Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49 (Fraser Henleins); Magaming v R (2013) 252 CLR 381; [2013] HCA 40. As was noted in Fraser Henleins, at [119]: "It has never been suggested that the sphere of judicial power is invaded when Parliament provides for a maximum or a minimum penalty for offences which are duly proved in courts of law." As recently noted in Magaming, at [49]: "...mandatory sentences (including, at 1901, sentence of death and, since, sentence of life imprisonment) were then, and are now, known forms of legislative prescription of penalty for crime. Legislative prescription of a mandatory minimum term of imprisonment for an offence was not, and is not, on that account alone inconsistent with Ch III."
Moreover, I would accept the Solicitor‑General's submission that the mandatory minimum term, as set out in s 25B of the Crimes Act, is one end of the statutory yardstick. Counsel for the applicant's proposition that s 25B is a disabling provision was considered in Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 (Karim), where Allsop P at [41] referred to the decision of R v Pot (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) where the Court: "…appl[ied] Pt IB of the Crimes Act (Cth) to come to a view about an appropriate sentence in all the circumstances of the offence. If the sentence considered thus was less than the mandatory minimum non-parole period and head sentence, it would be raised to meet the mandatory requirements of s 233C."
When considering this approach, Allsop P recognised the inevitable injustice which could result. His Honour noted, at [45]: "Equal justice inheres in judicial power, the fabric of the law and the basal notion of justice that underpins, informs and binds the legal system. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 608 [65], "[e]qual justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect" (emphasis in original). To approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty. Thus, if a judge thought the relevant offending in one case to be of low seriousness and worthy of a sentence of 6 months, but in another case to be of significant seriousness worthy of imprisonment for 5 years, she or he would be obliged to revise the first sentence to 5, leaving the second sentence at that point also. The statute, and through it the order of the Court, would be the instrument of unequal justice and, so, injustice".
As his Honour then noted, in approaching the minimum sentence as a yardstick: "...all usual sentencing considerations, including parity, [are] to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences." (Emphasis added.)
In the present instance, s 25B(3) expressly provides that the laws relating to the sentencing of offenders are unaffected, apart from the effect of s 25B(2). Moreover, the provisions of s 25B are similar to the legislative provisions considered in Karim, to the extent that s 236B of the Migration Act 1958 (Cth) specifically sets out mandatory minimum penalties for the aggravated offences in ss 233B, 233C and 234A, but not the offence of people smuggling in s 233A, or the false documents offence in s 234.
I would also agree with the Solicitor‑General's submission that the reference to a lesser sentence in s 25B(2) does not contemplate the Court first determining a proper outcome but for the application of the mandatory minimum provisions. As noted in Magaming, at [48]: "The prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick." (Footnotes omitted.)
Lastly, the submission that the decision of Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203 is authority for the proposition that s 25B is a disabling provision must be rejected. In that case, the Court was considering an appeal under s 5F of the Criminal Appeal Act 1912 (NSW), seeking an order that the indictment be quashed. In refusing the appeal the Court held that the primary judge was correct in concluding that Count 1 on the Indictment, being the offence the applicant was subsequently found guilty of, was an offence known to law. As Bathurst CJ noted, at [22]: "…it must be remembered that the issue between the parties in the present case is whether Count 1 on the indictment discloses an offence known to law. If this can be determined without having to consider the constitutional challenge to s 25B of the Crimes Act, then the latter issue should not be considered."
His Honour was not asked to determine whether the provision was, as submitted by counsel for the applicant, a disabling provision. Moreover, it should be noted that in Karim, his Honour agreed with the reasons and orders of Allsop P in his judgment in that case.
I am satisfied that s 25B of the Crimes Act acts as a statutory yardstick and is constitutionally valid. The Court will proceed to sentence.

Garth v R

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