R v Carngham

The judgment of the Court of Criminal Appeal was given on 7th October 1977, and on 10th October 1977 or soon thereafter the respondent, having entered into the necessary recognizance, was released from prison. No application for leave to appeal was lodged until 23rd December 1977. The delay was explained as follows in an affidavit filed on behalf of the Crown:

The question of an application for special leave to appeal was, in this case, a matter which required serious and unusual consideration. This combined with the pressure of work resulted in delay in the decision to make the application and in the subsequent preparation and settling of the necessary documentation. It hardly needs to be said that this is a quite inadequate explanation of the delay in a criminal case of this kind.

The right to appeal against sentence in New South Wales is governed by the Criminal Appeal Act, 1912 N.S.W., as amended. By s. 5 (1) (c) of that Act a person convicted on indictment may appeal to the Court "with the leave of the Court against the sentence passed on his conviction". The Crown is given a right to appeal by s. 5D which reads as follows:

The Attorney-General may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or the District Court and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper. By s. 6 (3) of that Act it is provided as follows: On an appeal against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal. It was held in Peel v. The Queen [2] that s. 68 (2) of the Judiciary Act 1903 Cth, as amended, operates upon s. 5D of the Criminal Appeal Act so as to give to the Attorney-General of the Commonwealth a right to appeal against a sentence pronounced by the Supreme Court or a court of quarter sessions (which then exercised the criminal jurisdiction now exercised by the District Court) upon the conviction of a person charged with an offence against a law of the Commonwealth. However it appears from the words of s. 5D themselves that if an order made on conviction is not a "sentence" within the meaning of the section, the Attorney-General has no right to appeal against it; in that case the person convicted would similarly have no right under s. 5 (1) (c) to appeal against the sentence. By s. 2 of the Criminal Appeal Act "sentence" is given an extended meaning; it "includes any order made by the court of trial on conviction with reference to the person convicted, or his property, and any recommendation or order for deportation in the case of a person convicted; and the power of the Court of Criminal Appeal to pass any sentence includes a power to make any such order or recommendation". 1. (1971) 125 C.L.R. 447.

The meaning of "sentence" in the Criminal Appeal Act was considered by this Court in Griffiths v. The Queen [3] . In that case the Attorney-General of New South Wales sought to appeal against an order remanding the accused for sentence until a named date, and ordering that he be released upon his entering into a recognizance to appear on that date for sentence and to be of good behaviour and to submit himself to the supervision of the parole service in the meantime, with the provision that the period of remand might be broken at the instance of either the accused or the parole officer. This Court held that such an order was not a sentence either within the ordinary meaning of that word or within the extended meaning given to it by the definition in s. 2, and that the Court of Criminal Appeal had no jurisdiction to entertain the appeal. In the present case the members of the Court of Criminal Appeal who constituted the majority considered that the judgments of three members of this Court in Griffiths v. The Queen (Stephen J. [4] , Jacobs J. [5] and Aickin J. [6] ), showed that if the order for the release of the respondent upon his entering into a recognizance had stood alone it would not have been a sentence within the ordinary meaning of that word or within the extended meaning given to it by s. 2 of the Criminal Appeal Act. They further held that the order for the release of the respondent upon his entering into a recognizance did not become part of the sentence of imprisonment simply because it was made at the same time as the sentence was passed and in conjunction with it; the order was collateral or ancillary to, but distinct from, the sentence.

1. (1977) 137 C.L.R. 293. 2. (1977) 137 C.L.R. at p. 311. 3. (1977) 137 C.L.R. at pp. 324-325. 4. (1977) 137 C.L.R. at pp. 344-345.

The punishment which the Customs Act prescribes for an offence against s. 233B is fine or imprisonment. But s. 20 of the Crimes Act 1914 Cth, as amended, gives an additional power which was exercised by the District Court judge in the present case. The provisions of sub-ss. (1) and (2) of s. 20, so far as they are material, are as follows:

(1) If the Court thinks fit to do so, it may release any person convicted of an offence against the law of the Commonwealth without passing any sentence upon him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for such period as the Court thinks fit to order and will during that period comply with such conditions as the Court thinks fit to impose, or may order his release on similar terms after he has served any portion of his sentence.

(2) If any person who has been released in pursuance of this section fails to comply with the conditions upon which he was released, he shall be guilty of an offence.

On behalf of the Crown it was submitted that the judgments in Griffiths v. The Queen [7] were given in respect of an order quite distinguishable from that made in the present case. In the first place, it was submitted, an order made under the first limb of s. 20 (1) - that is an order for the release of the convicted person upon his giving security by recognizance to be of good behaviour - is a sentence within the meaning of s. 5D of the Criminal Appeal Act. Such an order, it was submitted, would finally dispose of the case against the convicted person, who, once conditionally released, could not thereafter again be sentenced in respect of the offence of which he was convicted: see the dicta of Windeyer and Owen JJ. in Devine v. The Queen [8] . On the other hand the order made in Griffiths v. The Queen did not finally dispose of the matter, since the accused could have been brought before the court again for sentence on the original offence. It was further submitted that the fact that the words of s. 20 themselves appeared to recognise that an order of that kind would not be a sentence is not conclusive of the matter, because the word "sentence" might have a different meaning in s. 20 from that which it has in s. 5D. Secondly, it was submitted that even if an order under the first limb of s. 20 (1) is not a sentence, when the court sentences a convicted person to a term of imprisonment, and orders his release under the second limb of s. 20 (1), the order forms part of the sentence, and an appeal lies against it.

1. (1977) 137 C.L.R. 293. 2. (1967) 119 C.L.R. 506, at pp. 516, 519, 524.

The judgments of the majority of the Court in Griffiths v. The Queen appear to support the view that an order for the conditional release of an offender made under the first limb of s. 20 (1) of the Crimes Act is not an order "with reference to the person convicted", within the meaning of s. 2 of the Criminal Appeal Act, because such an order does not adversely affect the person convicted. Such an order, although not within the extended meaning of "sentence", might fall within the ordinary meaning of that word; whether it does so depends on the meaning and effect of s. 20 - a difficult question which was left open by Kitto and Taylor JJ. in Devine v. The Queen [9] , and which need not be decided in the present case. I may assume, without deciding, that the Court of Criminal Appeal was right in holding that an order made under the first limb of s. 20 (1) would not be a sentence against whose inadequacy the Attorney-General of the Commonwealth might appeal. On that assumption I nevertheless consider that an order under the second limb of s. 20 (1) for the release of a person sentenced to a term of imprisonment forms part of the sentence, and that the Attorney-General may appeal against it.

There can of course be no doubt that the sentence of imprisonment for two years which was imposed on the respondent in the present case was a sentence within the meaning of the Criminal Appeal Act. The question whether the order that the respondent be conditionally released after 10th October 1977 forms part of the sentence, or is collateral and distinct, although not easy of solution, permits only of brief discussion. In my opinion when a court acting under s. 20 (1) passes a sentence of imprisonment and orders the release of the convicted person after he has served a portion of that sentence it is not possible to sever the order for release and to treat it as something separate and distinct from the sentence of imprisonment. Such an order would be meaningless if it were not made in conjunction with the sentence of imprisonment to which it relates. On the other hand the sentence of imprisonment itself would have a materially different effect if it were not for the order for release. In these circumstances it seems to me that the order for release must be treated as a qualification of the sentence of imprisonment and that it is right to regard it as part of the sentence itself. Although there is some ambiguity in the concluding words of s. 20 (1), the phrase "after he has served any portion of his sentence" in my opinion qualifies "release", not "order". That is to say, the order must be made at the same time as the sentence is imposed, and not after portion of it has been served. From the moment when sentence is pronounced the convicted person is entitled to release after he has served portion of his sentence if he complies with the condition of the order. A sentence of two years' imprisonment simpliciter is quite different in its incidence and severity from a sentence of two years' imprisonment coupled with an order for conditional release after some months. The true nature of the sentence imposed can only be ascertained by looking at the order as a whole.

If it were thought that doubt remained on this point, it would be permissible, in construing the provisions of the Criminal Appeal Act, to resolve the ambiguity by adopting a construction that would avoid absurdity and injustice. It would in my opinion be absurd, and in some cases unjust, if the Court of Criminal Appeal, whether on an appeal by the convicted person or on an appeal by the Crown, had power to quash a sentence of imprisonment, and to pass another sentence in substitution therefor, but had no power to affect an order that the person convicted be released after serving portion of the sentence originally imposed. It seems to me that it must have been intended by the legislature that if the Court of Criminal Appeal quashed a sentence the result would be to put an end to any order that the person convicted be released after he had served portion of that sentence. In other words the power of the Court of Criminal Appeal to pass a new sentence of imprisonment, whether more or less severe, was not intended to be fettered, or rendered futile by the continued operation of an order for release after the sentence in conjunction with which it was imposed had been quashed.

For these reasons, in my opinion, the Court of Criminal Appeal had jurisdiction to entertain the appeal against the whole of the sentence, including the order for conditional release.

On the present application only such material has been placed before us as has been thought relevant to the question of law which the application raises. The evidence or other matter placed before the District Court is not before us. It is therefore not possible for us to determine the appeal on the merits. However it was forcibly urged upon us by Mr. McHugh, on behalf of the respondent, that if we considered that the decision of the Court of Criminal Appeal was erroneous we should nevertheless impose conditions on the grant of special leave to appeal. In his submission it would be inhumane to return the respondent to prison after he had been released in accordance with the order made when he was sentenced, and had managed to rehabilitate himself in ordinary life. He therefore submits that it ought to be a condition of any grant of special leave that the Crown should not seek to have the case remitted back to the Court of Criminal Appeal for the purpose of having a new sentence imposed on the respondent.

It is unnecessary to consider the general question when a Court of Criminal Appeal which is considering an appeal against sentence may or should receive evidence of events that have occurred since the sentence was imposed. However it is clearly just and necessary that this Court in deciding upon the present application, and the Court of Criminal Appeal if the matter is remitted to that Court, should consider the fact that the respondent has been released from prison and has obtained, and achieved promotion in, employment, and that the Crown has been guilty of delay in making this application. However those facts, in themselves, do not necessarily render it unjust to return the respondent to prison in a case as apparently serious as the present. They are circumstances to be given full weight, together with all the other circumstances of the case, in deciding whether, if it is concluded that the sentence imposed by the District Court judge was manifestly inadequate, a sentence should be substituted which would require the respondent to serve a further term of imprisonment. (By "sentence" I mean of course a sentence of imprisonment as affected by an order for conditional release.) I have already said that we have not before us the material that was before the Courts below. We cannot decide whether, if the Court of Criminal Appeal had not wrongly declined jurisdiction, it should have allowed the appeal, or whether, if it now allowed an appeal, an order having the effect that the respondent should serve a further term of imprisonment would be unjust in all the circumstances. Those are matters which in my opinion should now be decided by the Court of Criminal Appeal.

I would grant special leave to appeal, and would allow the appeal. I would remit the matter to the Court of Criminal Appeal to hear the appeal and for that purpose to receive evidence as to the events that have occurred since the decision of that Court was given on 7th October 1977.

I have had the advantage of reading the reasons for judgment of the acting Chief Justice. For the reasons there stated I would grant special leave to appeal and allow this appeal, remitting the case accordingly.

The majority in the New South Wales Court of Criminal Appeal in my opinion mistook the effect of this Court's decision in Griffiths v. The Queen [10] . It was there decided that neither a remand accompanied by release upon recognizances to come up for sentence on a future day and meanwhile to be of good behaviour nor a release upon recognizances to be of good behaviour and to come up for sentence when called upon was a "sentence" within the meaning of that word in s. 2 of the Criminal Appeal Act, 1912 N.S.W.. This decision was applied by the Court of Criminal Appeal in the instant case to s. 20 of the Crimes Act 1914 Cth, sub-ss. (1) and (2) of which are set out in the reasons of Gibbs A.C.J.

The orders envisaged under s. 20 are significantly different from the kind of orders considered by the Court in Griffiths v. The Queen. There the orders considered were essentially releases on bail pending a final determination of the matter of sentence. If bail were declined by a defendant in such a case sentence would have to be passed forthwith or else the defendant remanded in custody. Under the last clause of s. 20 (1) a court may order release upon security being given for good behaviour etc. after portion of a sentence has been served. "Sentence" here must mean a prison sentence. It is envisaged that portion of the prison sentence may be served and service of the remainder of the prison sentence may be suspended upon security being given for good behaviour etc. The suspended prison sentence is a familiar concept. It is none the less "an order on conviction with reference to the person convicted" within the meaning of s. 2 of the Criminal Appeal Act even though the person is not incarcerated. There is a sentence of imprisonment even though the sentence is suspended. The last clause of s. 20 (1) envisages a part-suspended sentence; but there is nevertheless a sentence in respect of a defined period and that is "an order on conviction with reference to the person convicted". I agree with Gibbs A.C.J. that only one order is envisaged and that the words "after he has served any portion of his sentence" govern the word "release" and not the word "order". It is not contemplated that the Court would exercise a continuing supervision and, after service of portion of a sentence by a defendant, could then order release upon security being given.

Although the nature of the order envisaged in the first part of s. 20 (1) is not necessary to be determined in the present case, I would state that I am inclined to the view that it does not follow from Griffiths v. The Queen that such an order is not a sentence within the meaning of s. 2 of the Criminal Appeal Act. First, it is a final order and, secondly, it is an order for release only upon giving security. It is implicit that the defendant will be imprisoned unless and until the security is given. It is more akin to an order for recognizances for good behaviour as a punishment for a misdemeanour than a deferral of sentence. An order for recognizances in case of a misdemeanour is an order on conviction with reference to the person convicted because it explicitly or implicitly orders imprisonment until the security is given. The same would appear to be true of an order under the first part of s. 20 (1). However, it is unnecessary finally to determine this question.

The respondent, John Alexander Carngham, pleaded guilty to importing prohibited imports (a very substantial quantity of heroin) contrary to s. 233B of the Customs Act 1901 Cth, as amended, for which the maximum punishment was ten years' imprisonment or $4,000 fine or both. On 22nd July 1977, he was sentenced by Judge Smith of the District Court of New South Wales to imprisonment for two years from 10th April 1977. His Honour also (exercising power conferred by s. 20 of the Crimes Act, 1914 Cth, as amended) ordered his release after 10th October 1977, upon his entering into a recognizance before a magistrate in the sum of $200 to be of good behaviour for the balance of the period of the sentence. The Attorney-General of Australia appealed against the sentence (and order) to the Court of Criminal Appeal of New South Wales brought under s. 5D of the Criminal Appeal Act, 1912 N.S.W., as amended. The Court of Criminal Appeal dismissed the appeal for want of jurisdiction and the Attorney-General is now applying for special leave to appeal against the dismissal.

The Attorney-General may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or the District Court and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper. refers to the Attorney-General of New South Wales. Section 68 of the Judiciary Act 1903 Cth, as amended, states:

(1) The laws of each State respecting the arrest and custody of offenders or persons charged with offences, and the procedure for -

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith

shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth committed within that State

(2) The several Courts of a State exercising jurisdiction with respect to -

of offenders or persons charged with offences against the laws of the State, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State

In Peel v. The Queen [11] this Court (Menzies, Windeyer, Owen and Gibbs JJ., Barwick C.J., McTiernan and Walsh JJ. dissenting) held that the effect of s. 68 of the Judiciary Act is that the Attorney-General of Australia has the right to appeal to the New South Wales Court of Criminal Appeal against a sentence pronounced in respect of an offence against a law of the Commonwealth. The legislative scheme in the Judiciary Act allows substantially different judicial enforcement of laws of the Commonwealth in the different States. A provision in an Act that whatever any State may from time to time make the law is to be Commonwealth law in that State, is not self-evidently an exercise of the legislative power conferred by s. 51 or Ch. III of the Constitution. 1. (1971) 125 C.L.R. 447.

However, the correctness of Peel's Case is not under consideration. The only question raised is whether the orders of the trial judge made under s. 20 of the Crimes Act 1914 Cth, as amended, were a "sentence pronounced" within s. 5D of the State Act. In Griffiths v. The Queen [12] , I considered, and still consider that "sentence pronounced" is not to read as incorporating the extended meaning of sentence in s. 2 of the Criminal Appeal Act, which includes "any order made by the court of trial on conviction with reference to the person convicted, or his property, and any recommendation or order for deportation in the case of a person convicted". The right of an Attorney-General to appeal is not coextensive with the right of the person sentenced to apply for leave to appeal; there are some orders against which the person (although he requires leave) can appeal, but against which the Attorney-General cannot appeal.

The difficulty arises in trying to read s. 20 of the Crimes Act in the framework of the State Act. Section 20 states:

(1) If the Court thinks fit to do so, it may release any person convicted of an offence against the law of the Commonwealth without passing any sentence upon him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for such period as the Court thinks fit to order and will during that period comply with such conditions as the Court thinks fit to impose, or may order his release on similar terms after he has served any portion of his sentence.

(2) If any person who has been released in pursuance of this section fails to comply with the conditions upon which he was released, he shall be guilty of an offence. Penalty: Imprisonment for the period provided by law in respect of the offence of which he was previously convicted.

(3) The penalty provided by the last preceding sub-section may be imposed by the Court by which the offender was originally convicted or by any Court of Summary Jurisdiction before which he is brought.

(4) In addition, the recognizance of any such person and those of his sureties shall be estreated, and any other security shall be enforced.

Section 20 was obviously drafted without regard to s. 5D of the State Act. The language of the two sections is different. The word, "sentence", is used in s. 20 of the Crimes Act as meaning "imprisonment"; in s. 5D of the Criminal Appeal Act, the phrase, "sentence pronounced", is used in the sense of a decision finally disposing of the question of punishment, even if this involves no imprisonment or other punishment. An order under s. 20 (1) of the Crimes Act for conditional release is either the "sentence pronounced", as the expression is used in the Criminal Appeal Act (if it is an exercise of the first power in s. 20 (1) of the Crimes Act), or is part of the "sentence pronounced" (if it is an exercise of the second power). In this case the conditional release under s. 20 (1) was part of the "sentence pronounced" as the applicant was to be released after he had served portion of his sentence of two years. It follows that as long as Peel's Case is accepted as correct, the New South Wales Court of Criminal Appeal had jurisdiction to hear the appeal.

The difficulties of interpretation manifested in this case, and the actual or potential discriminatory application of federal criminal law in the various States, are created by the legislative device of using differing State laws as surrogate Commonwealth law. These difficulties could be avoided by directly conferring a right of appeal and investing State courts or a federal court with appellate jurisdiction under Ch. III of the Constitution.

Special leave to appeal should be granted and the appeal allowed. I agree with the order to remit proposed by Gibbs A.C.J. and with his observations on what should be taken into account by the Court of Criminal Appeal when this matter is remitted.

The circumstances giving rise to this application for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales are set out in the judgment of Gibbs A.C.J., as are the relevant statutory provisions. I do not need to repeat those matters.

The question is the correctness of the decision of the Court of Criminal Appeal that no appeal lay to it from the order made by a District Court judge pursuant to the Crimes Act 1914 Cth, as amended, upon the trial of the respondent on a charge of importing prohibited imports (namely, heroin and cannabis) contrary to s. 233B of the Customs Act 1901. The respondent pleaded guilty and the learned District Court judge ordered that he be imprisoned for a period of two years from 10th April 1977 and ordered his release after 10th October 1977 upon his entering into a recognizance before a magistrate in the sum of $200 to be of good behaviour for the balance of the period of the sentence.

The majority of the Court of Criminal Appeal in holding that it had no jurisdiction to entertain the appeal by the Attorney-General relied upon the decision of this Court in Griffiths v. The Queen [13] .

There is no doubt that the Attorney-General for the Commonwealth has a right of appeal under s. 5D of the Criminal Appeal Act, 1912 N.S.W., as amended, by virtue of s. 68 (2) of the Judiciary Act 1903 Cth, as amended, see Peel v. The Queen [14] . It is equally clear that no appeal lies to the Court of Criminal Appeal if the order appealed from is not a "sentence" within the meaning of the section, whether such appeal be by the accused or by the Attorney-General.

In my opinion the order made by the District Court judge in the present case pursuant to s. 20 of the Crimes Act 1914 Cth, as amended, differs in material respects from the order considered by this Court in Griffiths v. The Queen. In the latter case the District Court judge remanded the accused for sentence until a named date, and ordered that he be released upon his entering into a recognizance to appear on that date for sentence and to be of good behaviour and to submit himself to the supervision of the parole service in the meantime, with the proviso that the period of the remand might be brought to an end at the instance of either the parole officer or the accused himself. It was held that such an order was not a "sentence" within the extended meaning of the word "sentence" as defined in s. 2 of the Criminal Appeal Act. The provisions of s. 20 of the Crimes Act are quoted in the judgment of Gibbs A.C.J. and in my opinion they give, in relation to offences against a law of the Commonwealth, a power of quite a different nature from that exercised by the District Court judge in Griffiths v. The Queen. The power actually exercised was that given by the second limb of sub-s. (1) of s. 20, for what the trial judge did was to sentence the respondent to imprisonment for two years from 10th April 1977 and then to order his conditional release in the terms to which I have already referred. That order was made on 22nd July 1977, the respondent having been in custody from 10th April 1977. The Attorney-General for the Commonwealth appealed against the sentence and his appeal came before the Court of Criminal Appeal on 7th October 1977 which decided by majority that it had no jurisdiction to hear the appeal.

The order made was in my opinion a "sentence" within the meaning of the Criminal Appeal Act composed of two interrelated parts, namely, the imposition of a term of imprisonment with an order for the conditional release of the respondent after the service of part of the period of imprisonment, namely, the period expiring on 10th October 1977, conditional upon his entering into a recognizance. Sub-section (2) of s. 20 shows that upon a failure to comply with the terms of the recognizance an offence under that sub-section would be committed. There was no possibility under the terms of the order that the respondent could come back before the trial judge for the imposition of a sentence, or a different sentence, upon the original offence. The statutory context seems to me to make that abundantly clear and it is this along with the imposition of a term of imprisonment which distinguishes the present case from Griffiths v. The Queen [15] . The special powers given by s. 20 (1) of the Crimes Act contemplate an order for the release of a convicted person, either without passing any sentence upon him, or after imposing a sentence or upon imposing a sentence, such release being subject to such conditions as are referred to in the sub-section. In the present case the latter is exactly what the trial judge did. The respondent was convicted upon his plea of guilty and a sentence of imprisonment for two years was imposed, but at the same time, and as part of the same order, his release was ordered after he had served only a portion of his sentence, but subject to a condition.

It is in my opinion clear that this was a sentence within the definition in the Criminal Appeal Act and it was an order of an entirely different kind from that dealt with in Griffiths v. The Queen. It appears to me that the error which has been made has been to regard the order for the release of the accused upon his giving security by way of recognizance after he had served part only of his sentence as a separate and quite independent order and one which looked at as a separate order could not be regarded as falling within the terms of the definition. In my opinion that view is not warranted by the language of the section and it may be observed that the appeal was not simply from that part of the order of the District Court but was from the whole of the sentence of which that formed a part only. I am therefore of opinion that the order made was a "sentence" within the meaning of s. 12 of the Criminal Appeal Act.

For those reasons I am of opinion that the decision of the Court of Criminal Appeal was erroneous. This is a matter of general importance and it is a proper matter for special leave. I do not need to add to the observations of Gibbs A.C.J. as to the course which should be followed and the matters that should be taken into consideration, both by this Court in allowing the appeal, and by the Court of Criminal Appeal in dealing with the appeal itself on its being remitted to that Court. For the reasons given by Gibbs A.C.J. I agreed that the appeal should be allowed and an order made in the form proposed.