Griffiths v The Queen

Griffiths v The Queen - [1977] HCA 44 - HCA 1977 case summary — Zoe

[98]

The first question then is, who were the overseers of the said parish at the time the conviction took place. The information was laid in the year 1842, when the parties prosecuted pleaded guilty. The defendants contend that the conviction took place at that time. The plaintiff, on the other hand, says that there was no conviction then, nor till the parties were subsequently brought up and received the sentence of the court. The word "conviction" is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court. In the passages cited from Blackstone's Commentaries, the term seems to be used in both senses. The question is, in which sense is it used in the statute now under consideration. And I cannot but think that the case of Sutton v. Bishop [17] is decisive of the point. The court there said, "Though there is a distinction in criminal cases between the conviction and attainder, yet there is no such distinction in civil cases between verdict and judgment, so as that any effect can follow from a naked verdict. In a civil action no penalty takes place till judgment be given on the verdict. The penalty is demanded as a debt, and is not due till judgment is given. Any other construction would open the door to frauds. An offender would prosecute another to verdict, and therefore secure his own indemnity, and then proceed no further." Why does not the same reasoning apply to this case? If a verdict of a jury or a confession by the party were sufficient to satisfy the statute a door would be equally open to fraud. It is clear that he was deciding the question on the construction of the particular statute bearing in mind that the statute was providing for a penalty recoverable by civil action. It must also be borne in mind that a conviction was not certain and final until judgment because the conviction might have been quashed on a motion in arrest of judgment. See Russell on Crimes and Misdemeanours, 2nd ed. (1826), vol. 2, p. 594, and in a civil action for a statutory penalty this could be regarded as an important guide to the construction of the statute. 1. (1844) 7 Man. & G. 481 [135 E.R. 193]. 2. (1844) 7 Man. & G., at p. 504 [135 E.R., at pp. 202-203]. 3. (1769) 4 Burr. 2283.

[135]

Since in my view this Court must perforce intervene in the proceedings because of the important question involved, and must set aside the sentence as invalid, it is necessary to indicate the course which should now follow. The conditions of the bond became impossible of performance when the applicant was taken into custody to serve the sentence imposed upon him by the Court of Criminal Appeal. The applicant must be brought before Judge Goran at the earliest opportunity. It seems to me that the only course now open is so to deal with the applicant that he will be discharged forthwith. The imposition of a substantial sentence of penal servitude at this stage would be inconsistent with fundamental principles of criminal justice. In so stating, I should not be taken to approve the course taken by Judge Goran in this particular case. The applicant's crimes warranted a substantial sentence of penal servitude. If it was intended that he would be sentenced to penal servitude, then there was no justification for delay. If, on the other hand, it was contemplated that there might not be a prison sentence, then for the trial judge to take such a view was wrong. This was not a case for a bond. The best test whether or not this view is correct is to ask oneself whether, no matter which judge the matter had come before, the likelihood or probability was that the applicant might have been spared a prison sentence. By applying that test, at first instance or on review, disparity of sentencing standards between individual judges is likely to be reduced to some extent at least. Disparity of sentencing standards is a very serious deficiency in a system of criminal justice. This is coming more and more to be recognized. See for instance, most recently, the Report of the Twentieth Century Fund Task Force on Criminal Sentencing entitled "Fair and Certain Punishment" (1976), whose distinguished members were drawn from the judiciary, the law schools, and law enforcement agencies in the United States. The report finds that in the United States there is a profound imbalance between the severity of punishment and the certainty of punishment and that this is perhaps the major flaw in the criminal justice system. See p. 3 of the Report. It makes clear that the main concern is not that wide disparity in sentences is relatively unfair between different offenders but that it is also unfair in the absolute sense that the sentences which fall towards either end of the scale are simply and plainly wrong when they are measured against fairness and effectiveness. See p. 4. It is also observed that there is data to suggest that, in the jurisdictions where the sentencing structure is more indeterminate and the greatest discretion is left to the individual judge, judicially imposed sentences tend to be longer. See p. 13. The position is aggravated in the United States by the lack in many States of an equivalent of the Court of Criminal Appeal with its wide powers of review. It is the task of a court of criminal appeal to minimize disparities of sentencing standards yet still recognize that perfect uniformity cannot be attained and that a fair margin of discretion must be left to the sentencing judge.

[210]

When a person is convicted of any offence, the Court or Justices may, instead of passing sentence, discharge the offender upon his entering into his own recognizance, with or without sureties, in such sum as the Court or Justices may think fit, conditioned that he shall appear and receive judgment at some future sittings of the Court or when called upon within a period specified by the Court or Justices and, if the Court or Justices think fit, that he shall in the meantime keep the peace and be of good behaviour. In R. v. McKeown [72] the Full Court heard an appeal by the Attorney-General against an order under s. 19 (9) under which the trial judge had discharged the accused upon his entering into his own recognizance in the sum of £50 to come up for sentence, if called upon within twelve months. It was argued for the accused that he had not been sentenced and that there was no appeal. That argument was rejected and the Court held that the word "sentence" included an order under s. 19 (9) of the Code. Macrossan C.J. said [73] , after referring to the definition, but without giving reasons, that an order under s. 19 (9) was a "sentence", and added that: it is true that on a proper proceeding by the Crown Prosecutor the matter could be brought up again before the trial Judge to pass a sentence of imprisonment if he so thought fit. In view of his report, however, he could hardly do that, and in practice a prisoner given the benefit of s. 19 (9) is not brought up again for sentence unless he be guilty of some new wrongdoing. In Reg. v. Williams [74] where the accused had been convicted of attempted rape and the trial judge had admitted him to probation under the Offenders Probation and Parole Act, 1959 Q. for a period of four years, the Attorney-General appealed under s. 669A. It was argued that the order was not a "sentence" as defined. The argument was rejected but no reasons were given. 1. [1940] St. R. Qd. 202. 2. [1940] St. R. Qd., at pp. 212-213. 3. [1965] Qd. R. 86.

[215]

It is commonly said that a person is brought up for breach of recognisance before a court before which he has previously been convicted, and released on recognisance. The phrase is a natural one to use, but it is an inaccurate phrase. The person in those circumstances, and the appellant in this case in these circumstances, was not brought up for a breach of recognisance. He was brought up before the court to receive the judgment of the court, upon a conviction recorded against him, which up to that date had never been passed. In other words, he was brought up for sentence. He was brought up because he had been given an opportunity to be free while he behaved himself. He had misbehaved himself, and, so far from observing the condition, he had broken the undertaking. It is accordingly clear that, unless an accused may be sentenced twice for the same offence, those courts must have taken the view that the binding over of the accused on his own recognizance for a period does not comprise a "sentence" in the ordinary sense of that term, but is a provisional order which is vacated on his being brought before the court on breach of the terms of the recognizance. See also Reg. v. Blow [78] where Gibbs J. referred to R. v. David [76] and to other cases which made it clear that where an offender is discharged on his entering into a recognizance and later comes up for sentence after a breach of the recognizance, he is sentenced for the original offence and not for the breach of recognizance. He also said: Similarly, it has been held that there is a right of appeal where a prisoner is dealt with for breach of a probation order made under the English legislation that corresponds to The Offenders Probation and Parole Act of 1959 (Reg. v. Green [79] ). Under that legislation the Court, instead of sentencing the offender, makes a probation order and if the probationer has failed to comply with any of the conditions of the order the Court may deal with him for the offence in respect of which the probation order was made. 1. [1939] 1 All E.R. 782. 2. [1939] 1 All E.R., at p. 785. 3. [1963] Q.W.N. 1, at p. 3. 4. [1939] 1 All E.R. 782. 5. [1959] 2 Q.B. 127.

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Judgment (224 paragraphs)

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