Griffiths v The Queen

[26]

The effective sentence which a court determines to be appropriate punishment for a series of offences can be framed, in most cases, either as sentences for the several offences to be served concurrently, or as cumulative sentences, or as sentences which are in part cumulative and in part to be served concurrently. If, with full awareness that s. 20A applied only to those serious offences which were committed after 1 January 1988, the Court of Criminal Appeal chose to impose the head sentence of fifteen years for the armed robbery committed on 8 January 1988 and to impose lesser head sentences for all other offences to be served concurrently with the fifteen-year sentence, the sentences so imposed are not open to objection. Nor does the imposition of a head sentence for the armed robbery committed on 8 January 1988 in that way establish an exceptional feature in respect of that offence which might attract the operation of s. 21(3). By its terms s. 21(3) operates only with respect to an offence to which s. 20A applies and s. 21(3) operates only when the circumstances of the offence to which s. 20A applies are exceptional. The true thrust of the applicant's argument must be that, in a case where s. 20A applies to some serious offences in a series but not to others in the series, it is wrong to impose the full effective head sentence on the serious offence or offences to which s. 20A applies. We would agree that the differing application of s. 20A warrants consideration of the appropriateness of imposing the full effective sentence on the offence or offences to which s. 20A applies, but no error of principle appears merely from the Court's having chosen that course. If it be suggested that, in the present case, the Court of Criminal Appeal chose that course without adverting to the differential application of s. 20A, it may be answered that that is the merest speculation which, if it be correct, was due to a failure to alert the Court to the implications which that course entailed for the non-parole period. The argument which was raised for the first time in this Court does not persuade us that special leave should be granted.

[48]

The applicant's submission that the sentence of fifteen years was excessive for the particular offence of armed robbery and wounding was, however, advanced as but the first step in an attack upon the increased non-parole period fixed by the Court of Criminal Appeal. The applicant's argument in that regard focuses upon the fact that s. 20A of the Act only applies in relation to serious offences which were committed after 1 January 1988 (see s. 20A(4), above). The aggregate sentence of fifteen years' imprisonment imposed by reference to the "totality" principle included, so it is said, an element of punishment attributable to all offences, including the 1987 offences. That being so, an erroneous inflation of the sentence for the armed robbery and wounding offence to include the whole of that fifteen-year period would produce the consequence that s. 20A applied in respect of a wrongly inflated period of imprisonment. The answer to this argument lies in what has been said above. If the sentence of fifteen years for the particular crime of armed robbery and wounding should properly be seen as excessive, the obvious variation of the sentences imposed by the learned trial judge to achieve what the Court of Criminal Appeal saw as the minimum aggregate sentence of fifteen years' imprisonment was to make the sentence of twelve years imposed by the learned sentencing judge for that offence partly cumulative upon the sentence or sentences of six years imposed for the worst or all of the other offences of armed robbery. If that course were followed, it is not suggested that the "total length" of the sentences in respect of the January 1988 "serious offences" could properly be seen as excessive. That "total length" would still provide a situation in which s. 20A would produce a minimum non-parole period of eleven years and three months since the aggregate of the sentences imposed in respect of the January 1988 "serious offences" would, to the extent that they would then be cumulative, be fifteen years.

[49]

There remains to be mentioned an argument which emerged in the course of discussion in this Court. The question which that argument raises is whether the fact that the series of offences in the present case straddled the critical date (for the purposes of s. 20A) of 1 January 1988 constituted, in the circumstances, an important consideration supporting a conclusion that the circumstances of the case were such as to justify the fixing of a shorter non-parole period than that prescribed by s. 20A. It is not suggested that that argument was advanced by the applicant in the Court of Criminal Appeal and the question which it raises is not adverted to in the judgment of that Court. I have been much troubled about whether, in these circumstances, it is appropriate to consider that question on this application. With considerable doubt, I have come to the view that, in circumstances where the members of this Court are formulating considered and detailed reasons for judgment, the interests of justice will be better served if it is dealt with than if it is left unresolved. In coming to that view, I am mindful of the fact that the case involves an aspect of double jeopardy in that the increase of the applicant's sentence and non-parole period by the Court of Criminal Appeal represents a deprivation of liberty which had already been in jeopardy before the sentencing judge. The Court of Criminal Appeal was, no doubt, referring to that aspect of the case when it indicated that the head sentence which it imposed was less than would have been appropriate were it not for the fact that it was being imposed as an increased sentence by an appellate court. I am also influenced by a clear view that the question should be answered favourably to the applicant and that, in the result, the Court of Criminal Appeal failed to advert in its judgment to a relevant and important consideration in fixing the appropriate non-parole period. So to say implies no criticism of the Court of Criminal Appeal which must, of necessity, ordinarily deal with cases ex tempore and on the basis of the arguments presented by counsel.

[51]

It is necessarily a matter of speculation whether the Court of Criminal Appeal would have concluded that the circumstances justified the fixing of a lesser non-parole period than the minimum determined by the application of s. 20A if its attention had been drawn in argument to the relevance, for the purposes of s. 21(3), of the consideration that the six central offences involved in the series of offences to which the aggregate head sentence of fifteen years was appropriate included four offences to which the provisions of s. 20A were inapplicable for the reason that they had been committed prior to 1 January 1988. However, it seems to me that there is a significant likelihood that the Court of Criminal Appeal would, if their Honours' attention had been drawn to that aspect of the case, have concluded that the circumstances of the case were special or exceptional in the sense of justifying a departure from the statutory norm specified by that section. As I read the judgment of the Court of Criminal Appeal, their Honours were of the view that the application of s. 20A would ordinarily lead to the fixing of a harsher non-parole period than that which would otherwise be appropriate. It seems to me that that was so in the circumstances of the present case. In the context of the applicant's age and his "better than average" prospects of rehabilitation, the consideration that the minimum non-parole period of eleven years and three months resulted from the application of s. 20A to what was seen as the appropriate aggregate head sentence for a series of offences which included a majority of offences beyond the reach of that statutory provision was clearly of critical significance for the purposes of s. 21(3). In that regard, it should be borne in mind that when concurrent sentences are imposed under the "totality" principle for a series of crimes, it is commonplace for the leading head sentence to be fixed towards the upper limit of what is justifiable as punishment for the particular crime viewed on its objective facts in order to reflect the "totality" of the criminality involved in all the crimes.

[85]

However, the terms of s. 20A do not sit easily with these principles of sentencing which courts in England, Canada, New Zealand and Australia have worked out "to mould a just sentence for the conduct of which the prisoner has been guilty". Whether the trial judge imposes consecutive or concurrent sentences for a number of offences not all of which are "serious offences", the operation of s. 20A is bound to cause problems. If a head sentence is imposed both for a "serious offence" and to give effect to a "multi-faceted course of criminal conduct", the head sentence will be longer than if the "serious offence" stood alone. To apply the terms of s. 20A(2) to a head sentence based on a course of criminal conduct which includes offences which are not "serious offences" is to go beyond the legislative purpose. Non-parole periods for offences not within the scope of s. 20A are to be dealt with in accordance with general principles and not by the bottom line rule established by s. 20A. Moreover, in most, if not all, cases the automatic imposition of s. 20A to a head sentence based on a course of conduct involving both "serious" and non-serious offences must result in an injustice to the prisoner since it is unlikely that the judge would specify a non-parole period equivalent to three-quarters of the sentence in respect of offences which are not serious offences within the meaning of s. 20A. If, on the other hand, the sentencing judge decides, because of the operation of s. 20A, to impose consecutive sentences even though only one course of criminal conduct is involved, the totality principle requires that the total length of the sentences must not exceed what is appropriate for the course of criminality. This will usually mean that the sentence for the "serious offence" will be lower than if it stood alone. Even when, in accordance with general principle, consecutive sentences are required for independent acts of criminality, the need to ensure that there is "no overlapping of the factors brought into account in determining the length of each sentence" will often mean that the sentence for a "serious offence" is lower than would be imposed if the "serious offence" stood alone. Hence, as the result of the operation of s. 20A(2) the imposition of a concurrent as opposed to a consecutive sentence may result in a longer non-parole period for a "serious offence".

Griffiths v The Queen - [1989] HCA 39 - HCA 1987 case summary — Zoe

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Judgment (94 paragraphs)

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