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[1997] HCA 51
High Court of Australia
1997-11-07
Brennan CJ, Kirby JJ, Gaudron J, Angel J
Original judgment source is linked above.
High Court of Australia Brennan CJ Gaudron, McHugh, Gummow and Kirby JJ Lee Vanit v The Queen (FC 97/043) [1997] HCA 51
The appellants each pleaded guilty in the Supreme Court of the Northern Territory to having imported a commercial quantity of heroin into Australia contrary to s 233B(1)(b) of the Customs Act 1901 Cth. The importation involved 89.1 kg of pure heroin, the largest single importation to come before the courts of this country. On 18 August 1995, each of the appellants was sentenced to life imprisonment, the maximum sentence permitted by s 235(2) of the Customs Act. The sentencing judge, Angel J, declined to specify a non-parole period [1] .
On appeal, the Court of Criminal Appeal of the Northern Territory set non-parole periods for each of the appellants but dismissed their appeals against the imposition of life sentences [2] . The appellants now bring separate appeals to this Court. The appeals were heard together, it being argued on behalf of all appellants that, notwithstanding s 235(2) of the Customs Act [3] , s 16G of the Crimes Act 1914 Cth (the Act) operates in the circumstances relevant to these appeals to preclude the imposition of life sentences.
Section 16G is in Pt 1B of the Act [4] which, as the title to that Part indicates, is concerned with "sentencing, imprisonment and release of federal offenders". Section 16G provides:
If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly. [5] "Federal sentence" is defined in s 16(1) to mean, unless the contrary intention appears, "a sentence imposed for a federal offence". The appellants contend that that definition encompasses a life sentence and that federal sentence in s 16G is to be construed accordingly. 1. The relevant provisions of Pt 1B were inserted in the Act by the Crimes Legislation Amendment Act (No 2) 1989 Cth, with effect from 17 July 1990. 2. Section 16(1) defines "State", for the purposes of Pt 1B, to include the Australian Capital Territory and the Northern Territory.
It is not in issue that the sentences imposed on the appellants are to be served in the Northern Territory (the Territory). And it seems that sentences for offences against the laws of the Territory have not been subject to general remissions or reductions for good behaviour since their abolition on 1 July 1996 [6] . However, sentences of less than twelve months may be reduced by reason of the abolition of general remissions for good behaviour [7] . And by s 93 of the Prisons (Correctional Services) Act 1980 NT, the Director of Correctional Services has an unfettered discretion to grant remissions, previously of not more than seven days per year but, since 1 July 1996, of not more than thirty days per year of the sentence being served. It is not clear whether any general practice has developed in relation to the exercise of that discretion.
Notwithstanding that the sentences in issue in this appeal were imposed in August 1995, apparently before the abolition of general remissions for good behaviour, and notwithstanding that remissions and reductions are available in the circumstances earlier referred to, it seems to have been generally assumed that, at all times relevant to these appeals, sentences for offences against the laws of the Territory were not "subject to remission or reduction" (s 16G). As we are of the view that the appellants' argument with respect to s 16G must fail, it is convenient to proceed on the basis that that assumption is correct. Even so, it will later be convenient to consider the circumstances in which remissions and reductions are available in the Territory and the relevance of those remissions and reductions to the operation of s 16G.
It is convenient at this stage to note the operation which the argument for the appellants ascribes to s 16G. It is put that, on the basis that that section applies to life sentences, life sentences which might otherwise have been imposed on the appellants had to be adjusted in their favour. The consequence, it is said, is that only fixed term sentences could be imposed, notwithstanding that s 235(2) of the Customs Act expressly permits otherwise.
The approach to the operation of s 16G for which the appellants contend is the approach adopted by the Court of Criminal Appeal of the Supreme Court of New South Wales in R v Yun Choi Ng [8] and, later, applied by that Court in R v Yook & Sung [9] so that fixed term rather than life sentences were imposed in those cases. However, it was said in Ng that "[t]he application of s 16G to an indeterminate sentence raise[d] a problem" and that the only course which appeared open was to pay "regard to the experience and practice in relation to terms of persons sentenced to indeterminate sentences prior to the enactment of [s 16G], and to endeavour to make a judgment as to the consequences of the operation of a system of remissions against that background". And it was acknowledged that that was "not an exercise that [could] be undertaken with any degree of mathematical accuracy or analytical certainty". [10]
If s 16G of the Act does apply to life sentences, the approach adopted in Ng and for which the appellants contend is, in our view, the only one capable of giving the section any sensible operation. In this regard, the section's direction that "the court imposing the sentence must take [the absence of remissions or reductions] into account and must adjust the sentence accordingly" is not, in our view, given effect by an approach which allows for a "nil adjustment", an approach taken by Badgery-Parker J in R v Cheung Ying Lun [11] and favoured by Angel J as an alternative approach in this case [12] .
A life sentence for an offence against a law of the Commonwealth clearly falls within the natural and ordinary meaning of the words of the definition of federal sentence in s 16(1) of the Act. Accordingly, the question which arises in this case is whether, as allowed by s 16(1), an intention that that definition should not apply to s 16G is to be discerned from that section or from any other provision of Pt 1B of the Act. That question was not adverted to in Ng or in Yook & Sung. Nor was it expressly adverted to in this case.
There are, in our view, a number of matters which point in favour of the view that the expression "federal sentence" in s 16G does not have the meaning given to it in s 16(1) of the Act. First, there is the consideration that it is difficult, if not impossible, to relate the words of s 16G to life sentences. A life sentence is not ordinarily understood to be a sentence capable of remission or reduction. Rather, it ordinarily indicates a sentence which expires on the death of the person concerned, with release from prison occurring, if at all, only as the result of a licence allowing that course. Moreover, life sentences are not subject to remissions or reductions in any State or Territory. It is, thus, difficult to see what regard could usefully be had to the fact that remissions and reductions are not available for fixed term sentences when deciding whether or not to impose a life sentence.
Moreover, and as is implicit in the argument that s 16G operates to preclude the imposition of a life sentence, a life sentence is not susceptible of adjustment. And that being so, the direction in s 16G that the court "must adjust the sentence accordingly" cannot, in our view, be given effect. In our view, that direction is not given effect by the substitution of a sentence of a different kind, namely, a sentence for a term of years.
Another consideration telling against "federal sentence" bearing the meaning given in s 16(1) is that s 16G is one of three provisions in Pt 1B of the Act, the evident purpose of which is to avoid disparity between federal sentences and those imposed for offences against the laws of the State or Territory in which the federal sentences are to be served [13] . The other provisions are ss 19AA and 19AG. Section 19AA relevantly directs, in sub-s (1), that a State or Territory law which provides for the remission or reduction of head sentences [14] "applies in the same way to the remission or reduction of a federal sentence in a prison of that State or Territory". By s 19AA(4), remissions and reductions on account of industrial action which apply to non-parole periods under a State or Territory law are made applicable to federal non-parole and pre-release periods served in that State or Territory. Section 19AG then requires that the fact that remissions and reductions are not available for federal non-parole and pre-release periods other than pursuant to s 19AA(4) is to be taken into account in fixing those periods for federal sentences and that those periods are to be adjusted accordingly.
The evident purpose of avoiding disparity between federal sentences and those imposed for State and Territory offences would be defeated if s 16G were construed in the manner for which the appellants contend. All States and Territories allow for the imposition of life sentences regardless of the availability of remissions or reductions [15] . Thus, if the appellants' argument were accepted, life sentences might be imposed in the Territory for Territory offences, but not for offences against the laws of the Commonwealth.
There are two other matters which tell against construing "federal sentence" in s 16G to include a life sentence. First, that construction would also allow for disparity between federal sentences, a life sentence being permitted if it is to be served in a State or Territory which allows for remissions or reductions and not if it is to be served elsewhere. In our view, Parliament is not to be taken to have intended the possibility of a disparity of that kind without making its intention in that regard perfectly clear. Further, to construe s 16G as precluding the imposition of life sentences to be served in a State or Territory where there are no remissions or reductions would be to ignore the general rule of construction embodied in the Latin maxim generalia specialibus non derogant and to allow that, to that extent, the general provisions of s 16G detract from the specific provision of s 235(2) of the Customs Act and the provisions of other Commonwealth Acts which specifically allow for life sentences [16] .
In our view, the matters to which reference has been made indicate that the definition of federal sentence in s 16(1) was not intended to apply to s 16G of the Act and also require that "federal sentence" be construed in that section as not including a life sentence. There is, moreover, an alternative route to the conclusion that s 16G does not preclude the imposition of a life sentence. That alternative route involves some consideration of the assumption that, for the purposes of s 16G and notwithstanding the circumstances in which remissions and reductions are available in the Territory, sentences for offences against its laws are not subject to remissions or reductions.
None of the provisions of Pt 1B specifically advert to the possibility that, as with the Territory, a State or Territory law may allow remissions or reductions for some sentences and not for others or permit of them in some circumstances but not in others. A strict or literal reading would suggest that s 16G has no application in either situation. As already indicated, however, the evident purpose of ss 16G, 19AA and 19AG is to avoid disparity between federal sentences and those imposed for offences against the laws of the State or Territory in which the federal sentences are to be served. That purpose can only be achieved in a situation such as that which obtains in the Territory if ss 16G and 19AA(1) are construed so that they are capable of concurrent operation. And it is to be noted that s 15AA of the Acts Interpretation Act 1901 Cth directs that, in the interpretation of legislative provisions, an interpretation which would promote the purpose of the enactment in question is to be preferred to one that would not.
Neither "remission" nor "reduction" is defined for the purposes of Pt 1B of the Act. Given that general remissions or reductions for good behaviour were, until fairly recent times, a feature of the custodial practices of many of the States and Territories, it seems likely that s 16G was enacted in consequence of and is directed to the abolition of those remissions or reductions. And in our view, s 16G should be construed as referring to them rather than to remissions or reductions for sentences of a particular kind or remissions or reductions which apply only in particular circumstances. That construction is supported by history and is consistent with the purpose of ss 16G, 19AA and 19AG.
To give complete effect to the purpose of s 16G, however, it is necessary to construe its direction to take account of the absence of remissions or reductions as a direction to take that into account to the extent that that is consistent with achieving the section's purpose. It seems to us that s 15AA of the Acts Interpretation Act requires that s 16G be so construed. On that construction, it is necessary to take account of the absence of remissions or reductions only for comparable State or Territory sentences. And on that basis, s 16G has no present application to life sentences because, as already indicated, life sentences are not subject to remissions or reductions in any State or Territory.
The question in this appeal is whether s 16G of the Crimes Act 1914 Cth (the Act) applies to life sentences. Section 16G is entitled "Federal sentence to be adjusted if no State or Territory remission laws apply" and provides:
If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly. [17] Section 16G lies within Pt 1B of the Act. Part 1B is entitled "Sentencing, Imprisonment and Release of Federal Offenders". Section 16(1) defines "federal sentence" to mean, unless a contrary intention appears, "a sentence imposed for a federal offence". In my view, s 16G does not apply to life sentences. 1. Currently, life sentences are not subject to remissions in any State in Australia, with such sentences being reduced only by Executive action or the royal prerogative of mercy.
The three appellants each pleaded guilty to importing into Australia not less than the commercial quantity of a prohibited drug, namely heroin, contrary to s 233B(1)(b) of the Customs Act 1901 Cth. Under s 235(2)(c) of that Act, the appellants were each liable to a sentence of "imprisonment for life or for such period as the Court thinks appropriate".
In the Supreme Court of the Northern Territory, Angel J sentenced each appellant to imprisonment for life. In each case, his Honour declined to fix a non-parole period [18] . His Honour regarded s 16G as not intended to apply to life sentences. This approach is contrary to that adopted in a number of New South Wales cases [19] . Angel J held that if s 16G applied there should be a nil adjustment to each of the appellants' sentences. [20] The Court of Criminal Appeal of the Northern Territory (Martin CJ, Kearney and Mildren JJ) held that s 16G did not apply to life sentences [21] . The Court affirmed the head sentences of life imprisonment but fixed non-parole periods for each appellant.
The Northern Territory courts were correct in holding that s 16G of the Act does not apply to federal life sentences. By its very nature a sentence of life imprisonment is indeterminate. Apart from capital punishment, it is the most severe punishment that the law can impose. It expires only on the death of the prisoner. While death itself is certain, the period of life is not. The prisoner, sentenced for life, may live for a few weeks or less or may live for fifty years or more. Even where the prisoner is released on licence by Executive action, the sentence technically remains imposed on that person [22] . Because of the indeterminate nature of a life sentence, a further sentence cannot be imposed cumulatively on it [23] .
The indeterminate nature of a life sentence provides a compelling reason why s 16G does not apply to life sentences. It provides the requisite "contrary intention" that "federal sentence" in s 16G does not include a life sentence. A life sentence is inherently incapable of adjustment. If s 16G applied to life sentences [24] it would require the court to adjust a sentence that cannot be adjusted. Parliament cannot have intended such a result. As Patteson J once said, "the law compels no impossibility" [25] . Any determinate sentence that resulted from the "adjustment" of a life sentence in purported reliance on s 16G would be a substitution for, rather than an adjustment of, a life sentence.
In R v Cheung Ying Lun [26] , Badgery-Parker J suggested that s 16G could apply to a life sentence because the court could always make a "nil adjustment" to such a sentence and thereby maintain the indeterminate character of the sentence. But this suggestion cannot be reconciled with the language of the section. In respect of sentences encompassed by the section, the language of s 16G is mandatory: the court " must adjust the sentence", rather than must consider whether or not to adjust the sentence. The phrase "nil adjustment" is an oxymoron. Since it is not possible to adjust a life sentence, s 16G does not apply to such a sentence.
The statute cited as the Crimes Legislation Amendment Act (No 2) 1989 Cth (the 1989 Act) [27] made substantial amendments to the Crimes Act 1914 Cth (the Act) with respect to the sentencing, imprisonment and release of persons convicted of offences against the laws of the Commonwealth. In particular, it provided for Pt 1B, which now comprises ss 16-22A.
In one of its operations, s 68(1) of the Judiciary Act 1903 Cth provides that the laws of a Territory respecting the arrest and custody of offenders and the procedure for their summary conviction and their trial and conviction on indictment, apply and shall be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred by s 68 on the several courts of that Territory. When a Territory court imposes a custodial sentence on a prisoner upon conviction for an offence against a law of the Commonwealth, the prisoner will be incarcerated in a prison in that Territory unless removed therefrom under specific statutory authority [28] .
On 18 August 1995, the appellants were sentenced by a judge of the Supreme Court of the Northern Territory [29] to life imprisonment after pleading guilty that on 13 July 1994 at Darwin they imported into Australia heroin not less than the commercial quantity, contrary to s 233B(1)(b) of the Customs Act 1901 Cth. Section 235(2) of that statute stipulated a penalty of "imprisonment for life" or for such period as the court thought appropriate if the court was satisfied of certain additional factors specified in the section.
The Northern Territory Court of Criminal Appeal held that the primary judge had not erred in failing to apply s 16G of the Act so as to mitigate the penalty imposed [30] . In so deciding, the Court of Criminal Appeal departed from the reasoning of the New South Wales Court of Criminal Appeal in R v Yook & Sung [31] . Special leave was granted to settle the correct construction of s 16G. I conclude that the Northern Territory Court of Criminal Appeal correctly determined that s 16G did not apply to the sentences imposed upon the appellants.
If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly. In s 16(1) "sentence" is defined for ss 16B to 19AZD of Pt 1B as meaning "a sentence of imprisonment". The term "federal sentence" means "a sentence imposed for a federal offence" and "federal offence" means "an offence against the law of the Commonwealth". The same sub-section provides that "law" "in relation to the Commonwealth, a State or a Territory, includes the common law, and any Imperial Act or order, that comprises a part of that law". The term "Territory" is used throughout Pt 1B in a special sense. In s 16(1) "Territory" is defined so as not to include the Australian Capital Territory or the Northern Territory and "State" is defined so as to include the Australian Capital Territory and the Northern Territory. The terms "Territory sentence" and "State sentence" are defined in a corresponding fashion. The result is that in the present case the appellants, within the special meaning of s 16G, were to serve their life sentences "in a prison of a State".
In the absence of any qualification by statutory provision (and it is not suggested that there is any relevant qualification here), the ordinary meaning of a sentence of imprisonment for life is that the sentence "remains upon" the person convicted for the remainder of the life of that person [32] . In R v Foy [33] , it was said that whilst "many people come out while they are still alive it is only on licence, and the sentence of life imprisonment remains upon them until they die". A remission can occur pursuant to special statutory provision or as a result of the exercise of the Royal prerogative [34] . However, "the court must act upon the footing that every day of the life sentence will in fact be served [and] [i]t is not for the court to take into account the possibility or probability of the executive, at any time or at all, exercising the prerogative of mercy" [35] . One consequence is that the court may not impose a sentence of life imprisonment cumulative upon another sentence of life imprisonment [36] . How then, if at all, does s 16G qualify these basic propositions which give content to the expression "imprisonment for life" in s 235(2) of the Customs Act?
Section 16G is to be read with the other provisions (ss 16E-19AA) of Div 3 (headed "Sentences of imprisonment") of Pt 1B. The law of the Northern Territory relating to the commencement of sentences and of non-parole periods applies to a person sentenced in that Territory for a federal offence in the same way as it applies to a person sentenced there for an offence against the law of the Northern Territory (s 16E(1)). If the law of the Northern Territory has the effect that a sentence imposed for an offence against the law of the Northern Territory, or a non-parole period fixed in respect of that sentence, may be reduced by the period that the person has been in custody for the offence or is to commence on the day on which the person was taken into custody for the offence, the law applies in the same way to a federal sentence imposed on a person in the Northern Territory or to a non-parole period fixed in respect of that sentence (s 16E(2)). If the law of the Northern Territory does not have that effect, a court in the Northern Territory that imposes a federal sentence on a person, or fixes a non-parole period in respect of such a sentence, must take into account any period that the person has spent in custody in relation to the offence concerned (s 16E(3)).
Section 16G applies where a federal sentence is to be served in a prison of the Northern Territory (as is the case here) but only where sentences imposed for an offence against the law of the Northern Territory "are not subject to remission or reduction". In the Northern Territory at all material times there has been statutory provision for remission of sentences with a determinate length [37] . That circumstance might suggest that, on a literal reading, s 16G cannot have any application because the precondition, that the Northern Territory is a jurisdiction where "sentences are not subject to remission or reduction", has not been satisfied.
However, the better construction of s 16G is that the "sentences" spoken of here are those in pari materia with the "federal sentence" identified in the opening words of the section. It follows that, in the present case, the comparison is between the sentence of imprisonment for life provided for in s 235(2) of the Customs Act and a sentence of imprisonment for life imposed for an offence against the law of the Northern Territory. The question is whether or not a sentence of the latter description is subject to remission or reduction. It is accepted that there is no provision (within the meaning of s 16G) for "remission or reduction" of life sentences imposed for any offence against the law of the Northern Territory. Prisoners serving life sentences may be released from custody but remain subject to the life sentence imposed upon them [38] .
However, although these cumulative conditions to the operation of s 16G were satisfied, it does not follow that that provision operated to require the Supreme Court to take any steps with respect to the length of the sentences imposed on the appellants. Those preconditions were necessary but not of themselves sufficient for such an operation of s 16G with respect to the sentences imposed upon the appellants.
Section 16G operates where the court is engaged "in determining the length of the sentence" and requires the court to "adjust" the sentence it imposes accordingly. The length of a sentence is determined by stipulating its temporal termination point and so fixing its boundary or limit. Section 16G thus assumes a sentence of determinate length which is susceptible of adjustment to allow for the absence of provisions for remission or reduction. However, that which is adjusted in this way must remain, after the adjustment, a sentence of determinate length. It has been rightly said that "death is the most certain thing in life" [39] but its arrival remains indeterminate. By its nature, a life sentence is not a sentence of determinate length and is insusceptible of the process of adjustment for which s 16G provides.
In R v Yook & Sung [40] , the New South Wales Court of Criminal Appeal appears to have taken as the starting point an assumption that there was a need to apply the provisions of s 16G to an indeterminate sentence, despite the conundrum which then would be presented by the absence of a certain terminating date from which remissions might be calculated. It does not appear that any submissions had been addressed on the question as to whether s 16G was applicable to a sentence of life imprisonment.
The evident purpose which is apparent upon the true construction of s 16G is the making in certain circumstances of adjustments to determinate sentences, where the concept of remission and reduction may operate. This purpose is confirmed [41] and illustrated by the statement in the Explanatory Memorandum circulated by the Attorney-General to the House of Representatives in support of the Bill for the 1989 Act. It was there stated in relation to the proposed s 16G of the Act:
Proposed section 16G - Federal sentence to be adjusted if no State or Territory remission laws apply
If the State or Territory in which the person is sentenced to imprisonment does not provide for head sentences to be reduced by remissions or reductions the sentencing court must take into account that fact and adjust the sentence accordingly ie the sentence is to be shorter because the period fixed by the court will not be reduced by remissions or reductions - a 6 year sentence will remain a 6 year sentence.
The provisions of s 16G of the Crimes Act 1914 Cth (the Act) have been the subject of repeated judicial complaint and conflicting interpretations. The section has been described as curious [42] , lacking in plain purpose [43] , and perplexing [44] . Any construction of it has been said to produce "anomalies" [45] ranging from results which may appear generous to results insusceptible to accurate calculation or "analytical certainty" [46] .
The section was introduced into the Act as part of a package of reforms of federal sentencing law [47] . The provenance of the amendments was uncertain [48] , their purposes and terms were often felt to be unclear [49] , the difficulties caused by them were castigated as time-consuming [50] and the overall operation of some of the provisions was said to be "extraordinarily difficult and close to unworkable" [51] . Numerous judicial calls have been made for reconsideration of the legislation [52] . So far they have fallen on deaf parliamentary ears.
Complaints about a legislative text which is "unnecessarily complicated and opaque" [53] may be understandable. But the judicial duty is to give meaning to the purpose of Parliament expressed in the words which it has chosen. That meaning will be afforded, bearing in mind that the judicial task is to seek out and to declare the preferable construction of the legislation where more than one interpretation competes for acceptance [54] .
A large drug haul results in sentences of life imprisonment
On 12 July 1994 a vessel carrying Somphon Lee Vanit, Ponchai Tansakun and Sanan Wangsaimas (the appellants) was detected off Bathurst Island in the Northern Territory. It was escorted into Darwin Harbour on the following day. There, some time after the vessel had been secured, a hessian bag was found floating in the water nearby. Subsequently, further bags were found on the seabed close to the vessel. They contained, in all, 89.1 kg of pure heroin, sufficient to provide nearly 2 million individual doses of heroin to users. The haul was described as "by far the greatest weight of heroin detected upon importation into this country" [55] .
The appellants were each charged with importing into Australia not less than the commercial quantity of a prohibited drug contrary to the Customs Act 1901 Cth [56] . Upon conviction of the offences charged, the appellants each stood liable to a sentence of "imprisonment for life or for such period as the Court thinks appropriate" [57] .
In the Supreme Court of the Northern Territory, the appellants pleaded guilty to the charges before Angel J. His Honour convicted them. He proceeded to sentence each of them to imprisonment for life. He declined to fix a non-parole period [58] . In passing sentence, he concluded that the substantial involvement of each of the appellants in "a crime of this enormity" [59] called for a sentence of life imprisonment. He considered the provisions of s 16G. By reference to a decision of a single judge of the Supreme Court of New South Wales [60] he expressed the opinion that s 16G was not intended to apply to a sentence of imprisonment for life [61] . However, if the section did apply, any "adjustment" to be made to the sentence was, in his Honour's opinion, in this case, "nil". This conclusion was reached having regard to "the necessity to impose a sentence which fully reflects the criminality involved and which fulfils the overriding purpose of general deterrence" [62] .
The appellants sought, and were granted, leave to appeal to the Court of Criminal Appeal of the Northern Territory. That Court [63] in July 1996 [64] published its decision. Each of the appeals was allowed to the extent of the challenge to the refusal of Angel J to fix a non-parole period. Such periods were fixed in the case of each of the appellants [65] . However, the appeals against the sentences of life imprisonment were dismissed. Those sentences were confirmed.
By special leave, the appellants have now appealed to this Court.
Section 16G appears in Pt 1B of the Act, "Sentencing, Imprisonment and Release of Federal Offenders". The section appears under the heading "Federal sentence to be adjusted if no State or Territory remission laws apply". It provides:
If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.
The phrase "federal sentence" is defined in s 16(1) of the Act to mean "a sentence imposed for a federal offence". Many of the provisions of Pt 1B are relevant to the parties' arguments in this case. However, it will be sufficient to note particularly a number of the provisions. Some of them draw a distinction between a "federal sentence" and a "federal life sentence" (eg, ss 19AB(1)(b), 19AL(2), 19AR(1)(b)). The fixing of a non-parole period in the case of a life sentence is clearly contemplated by a number of the provisions. Thus s 19AF(2) provides (See also s 19AL(2), 19AM(1)(a), 19AM(2)(a)):
This section does not restrict the length of the non-parole period or the pre-release period in respect of a life sentence or sentences that include such a sentence.
Provision is also made for release of a person "serving a federal sentence" by a licence granted by the Federal Attorney-General (s 19AP(1)). Such a licence may be granted in relation to a person "subject to a federal life sentence" (s 19AP(6)(a)). The effect of parole orders and licences upon such sentences is provided for in s 19AZC(1) which states:
Where a parole order is made, or a licence is granted, in relation to a person:
(a) until the parole period or licence period ends without the parole order or licence being revoked, or until the person is otherwise discharged from imprisonment, the person is to be taken to be still under sentence and not to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period; and
(b) if the parole period or licence period ends without the parole order or licence being revoked, the person is to be taken to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period and to have been discharged from imprisonment.
In addition to the provisions for parole and release on licence, the law of the Northern Territory specifically preserves the Crown's prerogative of mercy [66] . The grant of parole, release on licence and the exercise of the Crown's prerogative of mercy each occurs pursuant to decisions made after a convicted federal offender has commenced to serve a "federal sentence" or "federal life sentence" as the case may be. However, the provisions of s 16G are concerned with an anterior point, namely when the court, called upon to do so, is "imposing the sentence". The fundamental question presented by this appeal is whether s 16G has any application to an indeterminate sentence, such as that of life imprisonment and, if so, how a judge is to "adjust" that sentence as the section requires.
Following the enactment of s 16G, divergent judicial opinions concerning its application to life sentences came to be expressed. The problem was not resolved in the earliest decisions in R v Paull [67] and Director of Public Prosecutions (Cth) v el Karhani [68] where general remarks upon, and criticism of, the section were ventured. In neither of those cases was a head sentence of life imprisonment imposed or contemplated. However, each case confirmed that s 16G was intended to relate only to the head sentence and not to the non-parole period. That holding was not contested in the present appeal.
Nevertheless, the problem raised by the present appeal soon emerged in cases involving serious drug importations. Three approaches have recommended themselves to judges in the Supreme Court of New South Wales and the Court of Criminal Appeal of that State:
This Court was informed that, apart from the present case and the cases in New South Wales to which reference has been made, the issue for decision has not been canvassed in other Australian courts. In R v Mooseek [77] where a federal prisoner was sentenced to life imprisonment in Victoria following his conviction for heroin importation, the application of s 16G appears not to have been considered. Alternatively it may have been assumed by all concerned that the section was inapplicable [78] . The foregoing therefore represented the state of the law when the appellants' appeals against the sentences imposed upon them came for decision before the Court of Criminal Appeal of the Northern Territory.
Put shortly, the primary judge in this case favoured view (1) stated above. However, he concluded that, if s 16G did apply, he should adopt view (3) and "adjust" the life sentences by nil. The Court of Criminal Appeal of the Northern Territory contented itself by embracing view (1) and rejecting view (2). It was therefore unnecessary for it to consider view (3) but clearly it is excluded by view (1). The Court reached its conclusion with proper attention to the desirability of adopting a uniform interpretation of federal legislation such as the Act [79] .
The Court below accepted that the practice in New South Wales, established by the Court of Criminal Appeal of that State, was contrary to its conclusion. It also accepted that, on its face, s 16G applied to all federal sentences, including federal life sentences. In reaching this last-mentioned conclusion, it rejected a possible argument for confining "federal sentence" in s 16G to sentences of a determinate period in juxtaposition to "federal life sentence", a phrase adopted elsewhere in the relevant Part of the Act. The words "federal life sentence" are not defined. Several provisions of the Act which refer to "federal sentence", and do not specifically refer to "federal life sentence" or "life sentence", must nonetheless logically apply to a federal life sentence [80] . Having rejected this relatively easy verbal way of solving the problem presented by s 16G, in reliance upon the rather weak reed of the expressio unius rule, the Court turned to give its reasons for embracing the first view. It said [81] :
There is support to be found in the Crimes Act for the proposition that s 16G does not apply to life sentences. The Act suggests that such sentences are capable of remaining as sentences for life rather than by being reduced to a fixed term after taking into account the fact that the sentence is not subject to remission or reduction: see, eg, ss 19AB(1)(b), 19AF(2), 19AL(2), 19AR(1)(b), 19AR(3)(d) and 19AP(6). Further, there is no provision for remission or reductions of life sentences in any place in Australia. To the extent that prisoners serving life sentences are released, they are released on licence, but are still subject to the life sentence thus imposed. If the purpose of s 16G is to achieve uniformity in the maximum period of time a person could spend in custody, it is impossible to see how this could be achieved in the case of life sentences [W]e are respectfully unable to agree that the word "accordingly" in s 16G enables the sentencer to take into account factors other than that related to the absent remission or reduction in making any adjustment to a proposed fixed term sentence. We think that word is to be restricted in its application to the adjustment called for by taking into account the missing remission or reduction factor alone. 1. See, eg, ss 16(1), 16F, 19(1), 19AG, 19AJ, 19AT(1) and the reference to "sentence" in s 19AK. 2. Wangsaimas v The Queen (1996) 6 NTLR 14 at 32
As with most questions of disputed statutory construction, the answer in the present case lies, in part, in an impression to be derived from the language used by the legislature, understood in the context in which it appears. Rules of statutory construction and aids for the performance of that task are simply convenient means of directing the mind of the decision-maker to applicable considerations as a check of the impression drawn from a careful reading of the statutory language and its context. This said, a number of principles may be recalled to mind:
What is meant by a sentence of " life imprisonment "?
Following the abolition of the death penalty throughout Australia, more sentences of life imprisonment have been imposed than was previously the case [92] . However, a life sentence "does not mean, and never has meant, imprisonment for the remainder of a convicted offender's natural life. It means imprisonment for an indeterminate term of years" [93] . Publicly available materials on the period of time served by prisoners sentenced to life imprisonment indicate that a life sentence would, in most cases, involve actual time spent in custody not greatly different from the highest determinate sentence for an offence of the same kind as that of which the prisoner has been convicted. In some cases, a life prisoner will serve less time in custody than a prisoner sentenced to a determinate sentence [94] .
There are strong arguments of legal principle and policy why life imprisonment should not mean imprisonment until death. Recidivism rates amongst life prisoners appear to be low [95] , a fact which may be explained on the basis that many of their offences involve intra-family violence unlikely to be repeated, or because, upon release, such prisoners are generally older than other prisoners [96] . Incarceration is expensive, to the community [97] and to the prisoner [98] .
The defining characteristic of a life sentence in Australia, therefore, is no more than uncertainty as to the date of release. Such uncertainty has been subject to academic criticism [99] . However, this Court is not concerned with the merits of the legislation. Parliament has provided for such a sentence. The primary judge has chosen to impose it. The question here is whether s 16G applies to such a sentence.
The appellants' basic argument was that the language of s 16G left no option but to apply its terms to all federal sentences, including federal life sentences. The argument went thus:
Apart from the "uncompromising" terms of the section [104] and the interpretative principle defensive of liberty, the appellants relied upon several arguments to support their construction of s 16G.
The object of the reforms, of which s 16G was one, was to benefit prisoners, including by promoting greater certainty in the length of their imprisonment. Although, prior to s 16G, prisoners sentenced to life imprisonment did not enjoy a right to remissions in any jurisdiction of Australia, they did have the benefit of effective "reductions" in the time they spent in custody. Ordinarily, this resulted from the systems of release on licence [105] . The operation of that system was recognised in the Act (ss 19AQ, 19AR, 19AU, 19AV, 19AW, 19AX, 19AZB, 19AZC). In practical terms, at the time s 16G was enacted, most prisoners sentenced to life imprisonment could, at some stage, expect release on licence. By the terms of the Act (s 19AZC(1)(b)) where their licence period ended without the licence being revoked, the prisoner was to be "taken" as discharged from imprisonment. On this footing, the application of s 16G to prisoners sentenced to life imprisonment involved no affront to the apparent purpose of the Parliament. The section was expressed in broad language. This was because it was intended to operate upon the wide variety of sentencing systems in operation in Australia. A narrow construction would defeat the achievement of that practical purpose.
The appellants advanced a further practical argument. As the materials on the actual detention periods for life prisoners demonstrate, the marginal difference between the seriousness of the worst case attracting a high but determinate sentence and some cases attracting a life sentence would be comparatively slight. Yet, upon the Crown's interpretation of s 16G, the one would secure a significant right to reduction of time in custody under its terms. The other would secure no reduction at all. Such an unfair and even arbitrary result, it was argued, ought not to be attributed to the Parliament as its purpose.
The need to adopt a broad approach was illustrated by the highly differentiated sentencing regimes applicable in the several Australian jurisdictions at the time s 16G was enacted relevant to the operation of remissions upon head sentences [106] and on non-parole periods. Some only of the jurisdictions provided for non-parole periods on life sentences [107] . Because s 16G was intended to operate in all parts of Australia, notwithstanding such differentiations, it was submitted that it should have a broad construction. Although its application could not be mathematical in precision [108] , sentencing was rarely susceptible to such accuracy. Courts of Criminal Appeal in New South Wales had managed to cope with the "adjustment" required by s 16G. They had done so since 1991. The Parliament had enjoyed opportunities to amend the Act if the standard so set did not conform to its purpose. It had refrained from doing so. Prisoners such as the appellants, therefore, had a legitimate expectation that, under the same federal law, they would be treated in the same beneficial way. To expect the Parliament to repair a narrow construction, if it were now adopted, would be unrealistic, given the pressure of other matters competing for the attention of the legislators.
These provisions have been generally abolished in New South Wales (1989), the Australian Capital Territory (1989), Victoria (1991), South Australia (1994) and the Northern Territory (1994). In the case of the Australian Capital Territory, ss 4 and 5 of the Removal of Prisoners (Australian Capital Territory) Act 1968 Cth provide that prisoners of that Territory held in New South Wales gaols are subject to the same remissions as affect New South Wales prisoners. Accordingly, remissions are not now available for such prisoners. In the case of the Northern Territory, remissions are now not available, except where s 58 of the Sentencing Act 1995 NT applies in relation to sentences of less than twelve months and requires the court in such cases to take into account the abolition of remissions, or where the Director of Correctional Services exercises his or her discretion under the Prisons (Correctional Services) Act 1980 NT, s 93 to grant remissions of up to thirty days per year of the sentence being served.
Remissions continue to be available in respect of determinate sentences in Western Australia (Sentencing Act 1995 WA, ss 85, 95), Queensland (Corrective Services Act 1988 Q and regs 21-28 of the Corrective Services Regulations 1989 Q; reg 21 provides for one-third remission) and Tasmania (Prison Act 1977 Tas, s 40 and reg 48 of Prison Regulations 1985 Tas providing for one-third remission to a maximum of three months).
So far as the adjustment to "nil" was concerned, this possibility was disputed by the appellants. It was submitted that the adjustment contemplated by s 16G was intended to be a real and not a fictitious one. Either the section applied to life sentences, with a consequential effective reduction in the time to be served in custody, or it did not. The number of crimes under the Act and under other federal legislation, which attract life sentences, is limited [109] . The offence of which the appellants were convicted was likely to remain the principal source of federal life sentences. Few State laws provide comparable punishment for State offences [110] . There was no reason of principle why the approach adopted by the New South Wales courts should not now be followed by this Court. So went the arguments for the appellants.
Whilst I accept that the reading of s 16G urged for the appellants might be available in the language used, it involves an artificial construction of the legislation. It has consequences which make it tolerably clear that it was not the purpose of the Parliament in enacting the section. I would reject the construction urged by the appellants for the following reasons:
The starting point is the ascertainment of the purpose of s 16G. That purpose, clearly enough, was to respond to the introduction of new legislative regimes in the States and Territories of Australia abolishing remissions. The preceding provision, s 19 of the Commonwealth Prisoners Act 1967 Cth, imposed a uniform federal regime whereby the provisions of a law of a State or Territory relating to reduction or remission of sentences, applied to a federal offender serving a sentence of imprisonment in a prison of that State or Territory "in like manner as those provisions apply in relation to a State offender or a Territory offender serving a sentence of imprisonment in that prison". The object of that section (now repealed) was to avoid the justifiable sense of grievance which could otherwise arise where prisoners, housed together in the same State gaols, had different regimes for reduction or remission of their sentences depending upon whether their sentences were imposed under federal or State law. The grievance would be most acute where, as was commonly the case in this class of offence, the offender was convicted both of a federal offence (such as drug importation) and of a State offence (such as possession) [111] . But if the maintenance of intra-jurisdictional uniformity was the purpose of s 16G, as the Explanatory Memorandum suggested, the section would, on that account, have no application to life sentences. In no jurisdiction of Australia are life sentences reduced by remissions. Nor have remissions, as such, ever been applied to them. Accordingly, to procure intrastate uniformity of treatment, whether under the repealed provision or under s 16G of the Act, prisoners sentenced to life imprisonment should continue to be treated the same. Introducing a system whereby federal life prisoners had their sentences "adjusted" or escaped what would otherwise have been a life sentence where State or Territory life prisoners in the same prison had no such benefits, would defeat the attainment of the object of intra-jurisdictional parity of treatment. On the contrary, it would introduce differential treatment both intrastate and interstate. This cannot have been the purpose of the Parliament.
So far as the language of s 16G is concerned, there are difficulties in the appellants' arguments. Assuming "federal sentence" includes a federal life sentence, a court can only "take into account" the non-availability of remission or reduction where that could be applicable to the sentence in question. As, of its nature, remissions or reductions are inapplicable to a life sentence, there is nothing to be "taken into account". It does not, and would not, determine "the length of the sentence". The only cases where the "length of the sentence" could be susceptible to adjustment as contemplated by s 16G, is the case where the sentencing judge has concluded that a determinate sentence is appropriate. The verb "adjust" presumes susceptibility to adjustment. This means rearrangement or refashioning of that which exists. It does not extend to the abandonment of an indeterminate sentence otherwise appropriate and the substitution of a determinate one. That is not "adjustment". It is alteration and substitution. It converts a sentence of life imprisonment to one of non-life imprisonment. The reference to "the length of the sentence" suggests that the adjustment contemplated was, and was only, an adjustment to a determinate sentence.
This approach is reinforced by a reflection upon the differences between the systems of "remissions" or "reductions" of sentences, previously uniform throughout Australia but now retained in some only of its jurisdictions, and the de facto and ex post "reductions" under systems for release on licence of prisoners sentenced to life imprisonment. The termination date of a life sentence is, of its nature, uncertain, depending ultimately, in its terms, on the life of the prisoner. To speak of "remission" or "reduction" in that context is therefore inappropriate. The effect of an order for the release on licence of a life prisoner was not to alter the term of the sentence. The sentence continued to operate according to its terms. The effect of the grant of a licence was simply to permit the prisoner to go at large subject to recall, for example, in the event of breach of the conditions of the licence [112] . There is nothing in s 19AZC(1)(b) of the Act to contradict this description of the nature of release on licence contemplated by the Act. Because, of its character, and in practice, remission was never applicable to life sentences, it must be assumed that s 16G, in referring to the differentiation between the remission and reduction regimes of different States and Territories was not referring to indeterminate sentences at all. Therefore, even if the words "federal sentence" were broad enough to encompass federal life sentences, the operation of the section excluded them by reason of its stated purpose and effect.
This conclusion also fits more comfortably with the fact that numerous express provisions remain in federal legislation for the imposition of the sentence of life imprisonment. It must be assumed that the Parliament, in enacting and not repealing such provisions, contemplated that cases would exist where such punishment was appropriate [113] . The contemplation of the imposition of such punishment is repeated in the many references in the Act to "federal life sentence". Therefore, the Act (including provisions enacted at the same time as s 16G), objectively envisaged that life sentences would, where appropriate, continue to be imposed. The appellants' rejection of the view that it was permissible to "adjust" a life sentence by a nil reduction necessarily posits that Parliament has, in effect, repealed life sentences for all federal offences. According to the appellants' approach all such sentences must be "adjusted" in a real way by substituting a determinate sentence for that of life imprisonment. This theory of s 16G is clearly incompatible with the surrounding sections. It assumes the adoption of a most curious, indirect and oblique procedure for the repeal of life sentences in federal statutes which should not be attributed to the Parliament.
Sentencing law should, so far as possible, be straight-forward and clear. The "adjustment" to a federal life sentence hypothesised by the view of s 16G which the appellants propounded is extremely difficult to apply in practice and inescapably arbitrary. This is demonstrated not only by the cases where it has been attempted but by a reflection upon the system of release on licence as it formerly applied to "reduce" life sentences in effect although not in law [114] . How, in such circumstances, and at the point of sentencing, a judge could predict or determine the number of years which a life prisoner should serve is unexplained. It would require super-human prescience or arbitrary guesswork. Because the former is not vouchsafed to judges, the latter would be the outcome. But arbitrariness of such a kind should not be required of sentencing judges, at least without the clearest authority of the Parliament. Such authority is missing from s 16G.
The result is not necessarily as unfair as the appellants contended in their attack on this construction. It means that State and federal life prisoners are treated equally with respect to remissions upon their head sentences. A federal life prisoner may still gain the benefit of release on licence or release pursuant to an exercise of the Crown's prerogative of mercy. Moreover, a prisoner serving a federal life sentence is ordinarily entitled to have a non-parole period fixed (s 19AB(1)) and to have the parole decision made at the appointed time. It is, by these means, that the Parliament provided, or contemplated, that the time actually served in custody by a federal prisoner, sentenced to life imprisonment, might, in appropriate cases, fall short of imprisonment for the term of the prisoner's natural life. It is true that release on licence and the exercise of the prerogative of mercy are reserved to the Executive Government, not the courts. But the setting of a non-parole period is left to the sentencing judge, if that course is appropriate at the time the sentence is imposed. It is usually of the nature of the offences which attract the sentence of life imprisonment that they are of such a gravity that only an indeterminate sentence will suffice to serve the purposes of sentencing. Nothing in the Act justifies the alteration of that conclusion, once it is reached. The verb "adjust" offers no foundation for the change of the sentence once it is determined that a sentence of life imprisonment is proper.
It follows that s 16G has no application to the sentence of a federal prisoner sentenced to life imprisonment. The Court of Criminal Appeal of the Northern Territory was right to so conclude. Earlier suggestions to the contrary in decisions of the courts in New South Wales were wrong. The appellants' appeals should be dismissed.
Lee Vanit
The Queen
(1996) 6 NTLR 14
(1986) 11 FCR 582
(1993) 115 FLR 302
(1995) 122 FLR 109
(1990) 21 NSWLR 370
(1968) 123 CLR 28
(1992) 174 CLR 455
(1990) 20 NSWLR 427
(1997) 188 CLR 114
(1993) 177 CLR 485
(1987) 162 CLR 514
(1976) 135 CLR 569
(1935) 53 CLR 563
(1997) 41 NSWLR 588
(1997) 71 ALJR 810
(1990) 19 NSWLR 112