GIBBS C.J., WILSON AND DAWSON JJ.: This application by the prosecution for special leave to appeal exposes some of the problems created by the form of s.233B and s.235 of the Customs Act 1901 (Cth), as amended, which sections respectively create a number of offences with respect to narcotic goods and provide maximum penalties for those offences. Section 233B(1) provides, inter alia:

(d) aids, abets, counsels, or procures, or is

in any way knowingly concerned in, the

importation into Australia of any

prohibited imports to which this section

applies, or the exportation from

Australia of any prohibited exports to

which this section applies;

The prohibited imports to which the section applies are narcotic goods: s.233B(2). The relevant provisions of s.235, which are set out in Kingswell v. The Queen [1985] HCA 72; (1985) 60 ALJR 17, at p 18; [1985] HCA 72; 62 ALR 161, at pp 165-166, have the effect that the maximum penalty for an offence against s.233B varies according to a number of circumstances, including whether the quantity of the narcotic goods exceeded either a commercial quantity or a trafficable quantity, and whether the offender had previously been convicted of an offence of a specified kind involving narcotic goods. For present purposes it is sufficient to repeat the provisions of pars.(c), (d) and (e) of s.235(2), which provide, subject to immaterial matters, that where a person commits an offence against s.233B(1) -

(i) that the narcotic goods in relation to

which the offence was committed consist

of a quantity of a prescribed narcotic

substance that is not less than the

commercial quantity applicable to that

substance; or

(ii) that the narcotic goods in relation to

which the offence was committed consist

of a quantity of a narcotic substance

that is not less than the trafficable

quantity applicable to that substance and

also that, on a previous occasion, a

court has -

(A) convicted the person of another

offence, being an offence against a

provision referred to in paragraph

(a) that involved other narcotic

goods which consisted of a quantity

of a narcotic substance not less

than the trafficable quantity that

was applicable to that substance

when the offence was committed; or

(B) found, without recording a

conviction, that the person had

committed another such offence -

imprisonment for life or for such period as

the Court thinks appropriate;

(d) where the Court is satisfied that the narcotic

goods in relation to which the offence was

committed consist of a quantity of a narcotic

substance that is not less than the

trafficable quantity applicable to the

substance but is not satisfied as provided in

paragraph (c) -

(i) if the narcotic substance is a narcotic

substance other than cannabis - a fine

not exceeding $100,000 or imprisonment

for a period not exceeding 25 years, or

both; or

(ii) if the narcotic substance is cannabis - a

fine not exceeding $4,000 or imprisonment

for a period not exceeding 10 years, or

both; or

(e) in any other case - a fine not exceeding

$2,000 or imprisonment for a period not

exceeding 2 years, or both."

2. The respondent was indicted in the District Court of New South Wales on a charge that he was knowingly concerned in the importation of prohibited imports to which s.233B of the Customs Act applied; "to wit, narcotic goods consisting of a quantity of cannabis resin". He pleaded guilty. The prosecution commenced to lead evidence as to the quantity and value of the amount of cannabis resin involved, but counsel for the respondent immediately objected to any such evidence on the ground that the indictment did not allege that the offence involved a trafficable quantity of cannabis resin; this objection was pressed. The learned trial judge disallowed the objection and permitted the prosecution to lead evidence which, if fully accepted, showed that the net weight of the cannabis resin was about 553 grams. The trafficable quantity of cannabis resin is 20 grams. Before the learned trial judge, and again in the Court of Criminal Appeal, it was submitted on behalf of the respondent that having regard to the form of the indictment the maximum sentence of imprisonment that could be imposed was that prescribed by s.235(2)(e) - viz., two years - whereas the prosecution submitted that the case fell within s.235(2)(d) and that a maximum sentence of twenty-five years might be imposed. The learned trial judge accepted the argument for the prosecution and imposed a sentence of six years imprisonment with hard labour, with a minimum term of three years. The sentence was imposed before this Court had given judgment in Kingswell v. The Queen, but the judgment in that case was pronounced before the appeal to the Court of Criminal Appeal was heard. On that appeal, the Court of Criminal Appeal said:

"Notwithstanding that his Honour correctly applied

the law as it stood when he had the matter before

him, the law has now been clarified by the High

Court decision and the appellant is, in the view of

this Court, entitled to succeed in the contention

that the omission of this matter of aggravation

from the indictment results in the statutory

maximum sentence being that prescribed by

s.235(2)(e), that is to say, in terms of

imprisonment, a period not exceeding two years."

The Court of Criminal Appeal accordingly quashed the sentence and non-parole period and imposed in lieu a term of two years imprisonment.

3. In Kingswell v. The Queen the majority of this Court rejected an argument that the Parliament intended that s.235(2), read together with each paragraph of s.233B(1), should have the effect of creating a number of distinct offences whose elements are to be found described partly in s.233B(1) and partly in s.235(2). It was decided that each paragraph of s.233B(1) creates a separate offence and that the additional matters stated in s.235(2) are relevant to the maximum sentence that may be imposed but are not ingredients of the offence. It was also held that "the Court" which is, according to s.235(2), to be satisfied of the matters mentioned in that sub-section, must be the judge or magistrate and not the jury. Nevertheless three members of the Court held that as a matter of practice when the circumstances of aggravation described in s.235(2) are relied on, they should be charged in the indictment.

4. It was submitted before us that this practice suggested in Kingswell v. The Queen is productive of difficulties, but we do not agree. The inclusion in the indictment of matters of fact, which, although not elements of the offence, render the accused liable to a greater maximum punishment, serves the double purpose of informing the accused of a very important feature of the case made against him and of enabling the jury (in the event of a trial by jury) to decide questions of fact which may very materially affect the maximum punishment to which the accused is exposed. Where a jury determines the guilt of the accused the satisfaction of the court for the purposes of s.235(2) should be consistent with the finding of the jury.

5. The preferable course for the prosecution is to lay one charge which includes the circumstances of aggravation; the jury can then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation: see Archbold's Criminal Evidence and Practice, 42nd ed. (1985), at pars.4.459-4.461. Where the accused is alleged to have been convicted of a previous offence in respect of narcotic goods, in New South Wales the practice governed by ss.394 and 414 of the Crimes Act 1900 (N.S.W.), as amended, should be adopted. In those States where the matter is not governed by express statutory provision, the practice which is set out in Kingswell v. The Queen, at pp 22-23; p 173 of ALR, should be followed. In other words, the accused should, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence together with any circumstances of aggravation other than the alleged previous conviction. If he pleads not guilty or the court orders a plea of not guilty to be entered, the jury should be charged in the first instance to inquire only regarding those matters. If the accused is convicted the jury will, if the accused does not admit the previous conviction, be asked to find if he was previously convicted of the earlier offence alleged: but, in relation to Victoria, see Crimes Act 1958 (Vict.), as amended, s.395. In the event of an accused pleading guilty to the offence as charged but then disputing an alleged previous conviction, since no jury will have been empanelled the judge will proceed to determine that issue. Furthermore, if an accused person pleads guilty only to the offence as defined by s.233B, any matters of aggravation that may be in dispute will fall to be determined in accordance with the practice prevailing in the State concerned.

6. The rule requiring the circumstances of aggravation to be stated in the indictment is, as we have said, a rule of practice. Any failure to observe it does not necessarily mean that the conviction should be set aside - indeed, that appears from Kingswell v. The Queen where the practice was not observed but the sentence was allowed to stand. In any case in which there is a failure to observe the practice which we have laid down, it will become necessary to consider whether a miscarriage of justice has resulted and only if that question is answered in the affirmative should the sentence be set aside.

7. It is doubtful whether a miscarriage of justice would have occurred in the present case if the sentence had been allowed to stand. However, the respondent has now been released from prison after serving the sentence imposed by the Court of Criminal Appeal (two years) less remissions - a sentence which, when compared with the minimum custodial sentence imposed by the learned trial judge (three years) cannot be said to be manifestly inadequate. In these circumstances it is appropriate to grant special leave to appeal but to dismiss the appeal. It should however be clearly understood that the decision is not an authority for the quashing of sentences imposed in other cases where the rule of practice enunciated in Kingswell v. The Queen was not followed, unless it is shown that the failure to follow that practice has resulted in a miscarriage of justice.

8. We would grant special leave to appeal and dismiss the appeal.

BRENNAN and DEANE JJ.: The question in this case is whether the Court of Criminal Appeal of New South Wales ought to have set aside a sentence of 6 years imprisonment with a minimum of 3 years to be served imposed upon the respondent pursuant to s.235(2)(d)(i) of the Customs Act 1901 (Cth) on his conviction for an offence against the provisions of s.233B(1)(d) of that Act. The Court substituted a sentence of 2 years imprisonment, that being the maximum custodial sentence where the Court is not satisfied of the matters prescribed by s.235(2)(c) or (d) (which we shall describe compendiously as "s.235 matters"): see s.235(2)(e). The sentence was set aside for failure to charge in the indictment and to obtain the jury's findings on the matters prescribed by s.235(2)(d)(i) on which the prosecution intended to rely. The trial judge, being satisfied of those matters on his own assessment of the evidence, exercised the sentencing power conferred by that provision. The practice of charging s.235 matters and submitting those issues to the jury was commended in the joint judgment of Gibbs C.J., Wilson and Dawson JJ. in Kingswell v. The Queen [1985] HCA 72; (1985) 60 ALJR 17; 62 ALR 161. However, Mason J., who was also in the majority in that case, did not agree in the practice, while we, who were the minority, said nothing in support of it. It is not suggested that the practice was misunderstood or misapplied by the Court of Criminal Appeal: the issue is whether the commended practice should or must be followed.

2. The judgments in Kingswell are unanimous in holding that the term "court" in s.235(2) of the Customs Act means the judge or the magistrate presiding at a hearing and not the jury. The majority held that s.233B(1) creates the relevant offences and that the matters prescribed by s.235(2) are not elements of an offence but merely matters affecting sentence. It follows that, in a trial on indictment for an offence against s.233B(1), the elements of the offence defined by that sub-section fall for determination by the jury and s.235 matters fall for determination by the judge. In the joint judgment their Honours said (at p.20; p.169):

" Sections 233B(1)(cb) and 235(2) do not

contravene s.80 of the Constitution. Section 80

requires that if there is a trial on indictment

of any offence against any law of the

Commonwealth it shall be by jury. The sections

now in question do not provide to the contrary.

If there is a trial by jury the ordinary

incidents of such a trial will apply; the judge

will continue to exercise his traditional

functions, and, for the purpose of imposing a

sentence within the limits fixed by the law, will

form his own view of the facts, provided that

that view is not in conflict with the verdict of

the jury." (Emphasis added).

3. Nevertheless, the joint judgment commended the above- mentioned practice for three reasons (see p.22; p.172). First, a close analogy was perceived between circumstances of aggravation which convert an offence from a lesser to a greater one and circumstances of aggravation (in the sense involved in Kingswell) which do not affect the identity of the offence but merely render an accused liable to a penalty greater than could have been imposed if the circumstances did not exist. Secondly, there was the "fundamental principle" that questions of fact affecting the liability of an accused to punishment should be decided by the jury when the trial is on indictment. And thirdly, because it was conceived that s.564 of The Criminal Code (Q.) required s.235 matters to be charged in an indictment as circumstances of aggravation, it was thought that a uniform procedure throughout the Commonwealth should be adopted. It is clear that, notwithstanding a reference at the end of their judgment to the absence of any miscarriage of justice, their Honours were not prescribing the practice as a legal rule which, if not followed, would deny the sentencing power conferred by s.235(2)(c) and (d) to a sentencing judge who was satisfied of the relevant s.235 matters. Had their Honours considered the commended practice to be such a rule of law, the sentence in Kingswell could not have stood, as it did. The indictment had not charged the matters prescribed by par.(c) of s.235(2) - the relevant paragraph in that case.

4. The issue in Kingswell was whether a person who had committed an offence as defined by s.233B(1) could be made liable, consistently with s.80 of the Constitution, to a greater maximum penalty according to a judge's satisfaction as to the existence of s.235 matters. The constitutional validity of the relevant provisions of the Customs Act having been upheld by majority, Kingswell is authority for the proposition that the sentencing power conferred by s.235(2)(c) and (d) is validly enlivened by the satisfaction of the judge that the relevant s.235 matters existed. No practice can be inconsistent with that proposition of substantive law.

5. The reasons which led to the commendation of the practice must be examined in the light of the substantive principle established by Kingswell. At the heart of the decision lies the distinction between a circumstance of aggravation which converts an offence from a lesser to a greater one and a circumstance of aggravation which renders an accused liable to a penalty greater than could have been imposed if the circumstances did not exist. In the view of the minority, the analogy between the two kinds of circumstances of aggravation was so close that there was no material distinction between them; but in the view of the majority, there was a material distinction. The majority held that, in a trial on indictment of a federal offence which contains a circumstance of the former kind, the circumstance of aggravation must be found by the jury; but where the offence is so created that the circumstance of aggravation is of the latter kind, the circumstance of aggravation (that is, s.235 matters) may be validly committed by the Parliament to the determination of the judge. The sentencing powers conferred by s.235(2)(c) and (d) were therefore held to be validly conditioned on the satisfaction of the judge, not of the jury. Next, the fundamental principle that questions of fact affecting the liability of an accused to punishment should be decided by a jury when the trial is on indictment was, in the opinion of the majority, not a principle which s.80 required to be applied to s.235 matters. As the s.235 matters are for the judge to determine, the statute itself must be taken to exclude the application of the "fundamental principle". Finally, the conception that s.564 of The Criminal Code (Q.) required s.235 matters to be charged in an indictment assumed that s.235 matters were "circumstances of aggravation" as that term is defined by s.1 of the Code. Section 564 of the Code gives statutory form to the common law rule in R. v. Bright (1916) 2 KB 441, the effect of which is stated by Archbold's Criminal Pleading Evidence & Practice, 42nd ed. (1985), par.4-473, in a passage cited by the joint judgment (at p.22; p.171):

" ... where the offence is, by statute, punishable

by a more severe sentence if accompanied by

circumstances of aggravation, such circumstances

may be taken into account in passing sentence

only if they have been charged in the indictment

and been proved to the satisfaction of the jury

or admitted by the plea of Guilty."

But if a judge may not take s.235 matters into account unless those matters have been charged in the indictment and proved to the satisfaction of the jury or admitted by the plea of guilty, it would not be right to hold, as the Court unanimously did hold, that Parliament intended the sentencing powers conferred by s.235(2)(c) and (d) to be available when the judge, as distinct from the jury, was satisfied as to the s.235 matters.

6. The only sanction available for a failure to follow the commended practice is the quashing of a sentence imposed in breach of the practice. To apply that sanction would deny the function of the judge to be satisfied of the existence of the s.235 matters which determine whether the sentencing powers conferred by s.235(2)(c) and (d) are available. That function was reposed in the judge by the Parliament - validly, as the majority held - and the Court cannot, by legislating a practice, take it away. For these reasons, in our respectful opinion, there is a conflict between the practice commended and the essential point of the decision in Kingswell.

7. The dichotomy between the majority and minority views in Kingswell is complete: either the s.235 matters are to be viewed as a matter of substance as elements of an offence (the minority view) or they are not (the majority view). If the s.235 matters are merely relevant to the sentencing of an offender - "the class of matters commonly dealt with by trial judges exercising a sentencing discretion", as Mason J. held them to be (at p.24; p.175) - and need not be charged in the indictment or found by the jury if not admitted by plea, the sentencing power conferred by pars (c) and (d) of s.235 does not and cannot be made to depend upon the jury's satisfaction of the existence of s.235 matters. If the judge is satisfied of the existence of the relevant s.235 matters and imposes a sentence in accordance with sentencing principles, the sentence is validly imposed. We are respectfully unable to agree that a sentence within the range of the statutory discretion and imposed in accordance with sentencing principles can be set aside for miscarriage of justice - a miscarriage consisting merely in a failure to follow a practice of variable application.

8. To insist on the practice would be tantamount to amending the statute so that the jury would be charged with the responsibility of finding all the issues under s.233B(1) and s.235(2)(c) and (d). If that had been the intention of the legislature, there would have been no question in Kingswell of disconformity between those provisions and the requirements of s.80 of the Constitution. To prescribe the practice by judicial decision is to bring the statute into conformity with what the minority in Kingswell held s.80 to require. Although we were the minority, we are bound by the authority of Kingswell so long as it stands, and we are unable to concur in a practice which is inconsistent with the principle for which that case is an authority.

9. The day to day workings of the criminal court are not assisted by the practice operating in a context where the substantive offence is defined by s.233B(1) alone. If the indictment charges s.235 matters in addition to the s.233B (1) offence, what plea can the accused enter if he wishes to plead guilty to the offence and deny the s.235 matters? At common law or under the Code, the prosecution may refuse to accept a plea of guilty to an offence of less gravity than the offence charged, but how could a plea of guilty to a s.233B(1) offence shorn of the circumstances of aggravation prescribed by s.235 be refused? And, if the accused may plead guilty to the s.233B(1) offence alone, is a jury to be empanelled to determine the s.235 matters in issue? That would be a novel course. Could any justification be found for modifying the practice so that a jury finding on s.235 matters was not necessary when a plea of guilty to a s.233B (1) offence was entered? We should think not. The powerful reasons which led to the commendation of the practice have a special force when the findings on the s.235 matters determine whether the accused is liable to imprisonment for life (par.(c)), for 25 years (par.(d)(i), for 10 years (par. (d)(ii)) or for 2 years (par.(e)). Such a modification of the practice would simply furnish an accused with an incentive to plead not guilty if he wished to have the issues tried by jury or guilty if he wished to have them tried by a judge. That kind of choice is alien to the criminal law.

10. Criminal practice is an integral part of the criminal law, reflecting and sometimes defining its substantive provisions. A practice cannot be adopted which is inconsistent with the substantive law. The reduction in the respondent's sentence in the present case is inconsistent with the principle, unanimously adopted in Kingswell, that s.235 matters are for the judge to decide; yet the reduction of the sentence was the consequence of non-adherence to the commended practice. The practice thus appears to be wrong in principle and, in our opinion, should not be followed.

11. It is not a necessary consequence that the present appeal be allowed. The Court of Criminal Appeal understandably followed the commended practice and reduced the sentence. The respondent has served so much of the substituted sentence as he was required to serve by law and has been released from custody. It would be unjust now to make an order returning him to custody. Although the question of law that is raised would warrant the grant of special leave, justice will best be served in the very special circumstances of this case by refusing special leave. We would refuse special leave to appeal.