REGINA v GAMGEE

COUNSEL : Crown: P G Berman SC Respondent: P J Stratton SOLICITORS : Crown: O'Connor Respondent: - CATCHWORDS : s12 Crimes (Sentencing Procedure) Act 1999 - whether sentence contrary to law - whether execution of a sentence may be partially suspended - whether only power to impose term of effective imprisonment followed by non-custodial period is setting of non-parole period in accordance with s44. DECISION : (By majority) Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA 60111/01 MASON P SULLY J DOWD J

Held by Mason P and Dowd J, Sully J dissenting: 1. Section 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999 expressly contemplates that execution of a sentence may be suspended for any specified period that does not exceed the term of the sentence imposed. There is no reason why these words should be restricted to exclude the power to suspend part of the sentence.

2. The preferred interpretation allows appropriate denunciation of a serious offence, but with partial suspension of an initial portion of the term of imprisonment to enable some event to take place or, (as in the instant case) the conditional partial suspension at the latter end of the term imposed.

3. The Crown submission that the scheme of s44 would be subverted by this interpretation of s12(1)(a) should be rejected.

Dinsdale v R [2000] HCA 54, 74 ALJR 1538, 175 ALR 315 (cited). ORDERS

IN THE COURT OF CRIMINAL APPEAL CCA 60111/01 MASON P SULLY J DOWD J

JUDGMENT 1 MASON P and DOWD J: Following a plea of guilty to the offence of kidnapping, Judge Phegan imposed a sentence of imprisonment for two years to date from 13 December 2000. Relying upon s12 of the Crimes (Sentencing Procedure) Act 1999 (the Act) he directed that the prisoner be released from custody after six months and that he be placed on a good behaviour bond for the remaining 18 month period to appear for sentence if called upon at any time for any breach occurring during that period. The bond was to be subject to conditions including notification of changes in residential address, supervision by the Probation and Parole Service and acceptance of all reasonable directions of that Service. 2 The sentence is challenged on the single ground that it was contrary to law. 3 Section 12 of the Act provides: 12 Suspended sentences

(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: (a) suspending execution of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and (b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence. (2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.

(3) Subject to section 99 (1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section except to the extent to which it deals with setting the term of the sentence.

(4) An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment. In that case, any non-parole period set for the sentence ceases to have effect when the order under this section is made.

4 Section 99 provides: 99. Consequences of revocation of good behaviour bond

(1) If a court revokes a good behaviour bond: … (c) in the case of a bond referred to in section 12: (i) the order under section 12 (1) (a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (ii) Part 4 applies to the sentence, except to the extent to which it has already applied in relation to setting the term of the sentence, and (iii) subject to the requirements of Part 4 having been complied with, the sentence takes effect.

(2) Subject to Parts 5 and 6, a court may, on revoking a good behaviour bond referred to in section 12, make an order directing that the sentence of imprisonment to which the bond relates (disregarding any part that has already been served) is to be served by way of periodic detention or home detention.

(3) An order made under subsection (2) is taken to be a periodic detention order made under section 6 or a home detention order made under section 7, as the case requires.

(4) This Act applies to the sentencing or re-sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction.

(5) An offender who under this section is sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence.

5 The Crown submits that s12 does not permit suspension of part of the term of imprisonment imposed; and that the only power to impose a term of effective imprisonment followed by a non-custodial period subject to conditions is the setting of a non-parole period in accordance with s44 of the Act. 6 A suspended sentence may serve several goals (see generally Dinsdale v R [2000] HCA 54, 74 ALJR 1538, 175 ALR 315 at [74]ff per Kirby J). A condition of its use is that the offence is so serious that it requires a sentence of imprisonment to be imposed. The requirements of s5 of the Act must be complied with, including the prohibition upon sentencing to imprisonment unless the court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate (s5(1)). 7 Prior to 1974, s558 of the Crimes Act 1900 permitted the suspension of execution of a sentence of imprisonment upon a first offender. The provision was repealed that year and replaced with a wider power to grant a statutory form of common law bond. A broader power to suspend sentences was re-introduced upon the passing of s12 of the Act in light of the recommendation of the New South Wales Law Reform Commission (New South Wales Law Reform Commission, Discussion Paper 33, Sentencing ss9.61-9.64; Report No 79, Sentencing ss4.20-4.23). The power was proposed as an additional sentencing option containing elements of maximum flexibility (ibid). The Commission's principal reasons were expressed thus (Discussion Paper at s9.62): There are situations, conceivably limited in number and scope, where a suspended sentence of imprisonment would be the preferred sentencing option. A precondition of its use would be that the offence is so serious that it requires a custodial sentence to be imposed, particularly for reasons of denunciation. It would also have to be clear that the threat of imprisonment would be a sufficient specific deterrent for the individual offender, and that considerations of general deterrence are not paramount. Further, a suspended sentence would be appropriate when rehabilitation would thereby be promoted and there was not question of need to incapacitate the offender. 8 The Crown submits that s12 does not allow for a sentence to be suspended in part, as is the position expressly provided for in some other jurisdictions. 9 It is not suggested that any policy reason precludes the imposition of a sentence of imprisonment suspended as to part. The Crown's arguments are textual and contextual. 10 The Crown submits that the words "execution of the sentence" in s12(1)(a) implicitly exclude any power to suspend execution of part of the sentence. It is further submitted that s12 does not allow the suspension order to commence in the future, which is the operation of the order made by Judge Phegan in the present case. 11 We do not find these arguments persuasive. Indeed, we cannot fit them with the terms of s12(1) itself. Section 12(1)(a) expressly contemplates that execution of the sentence may be suspended for any specified period that does not exceed the term of the sentence imposed. Likewise, s12(1)(b) contemplates that the good behaviour bond may be for a term "not exceeding the term of the sentence". 12 The Crown finds work for these words to perform that is consistent with its interpretation: the words in par (a) ensure that the Damoclean sword can hang no longer than the term of imprisonment imposed. The words in par (b) similarly restrict the term of any bond that may be imposed. 13 So much may be granted. However, we see no reason why the words should not carry their full weight, thereby enabling wider use of this flexible sentencing option in circumstances falling fairly within the language adopted by Parliament. One is not interfering with any vested common law right or otherwise dealing with a provision that calls for a strict interpretation. In our view the reference to suspending execution of the sentence imposed, as distinct from mere suspension of the sentence, reinforces the interpretation which we prefer. 14 The interpretation which we favour would allow appropriate denunciation of a serious offence, but with partial suspension of an initial portion of the term of imprisonment to enable some event to take place (eg completion of a pregnancy or of a course of study). Conversely, it would allow the moulding of a sentence where the conditional partial suspension thereof occurs at the latter end of the term imposed, as occurred in the present case. The Crown has not suggested any policy reason why such options should be spurned, if the language of the enactment permits resort to them. Nor is it suggested that the Law Reform Commission rejected such possibilities. (The most that can be said is that they do not seem to have been thought of by the Commission.) 15 It is true that s12 does not provide expressly for the suspension order to commence at a future date. But the absence of such a provision does not suggest to us that such power is not available. As indicated already, we find reinforcement for the concept of partial suspension, including partial suspension from a future date, to be explicit in the power to suspend execution of the sentence for a period which is such period (not exceeding the term of the sentence) as the Court may specify in the order. Obviously this contemplates specifying a period that is less than the term of the sentence. 16 At the hearing, the Crown advanced what strikes us as the strongest argument against the interpretation which we favour. Section 44 of the Act confers and regulates the power of the Court to set the term of a sentence of imprisonment. The Court must set a non-parole period for the sentence, and the duration of that non-parole period must not be less than three-quarters of the sentence, unless the Court decides that there are special circumstances for it being less, in which the case the Court must make a record of its reasons for that decision (subs(2)). The possibility of non-compliance with subs(2) is contemplated in subs(4), but that does not permit deliberate con-compliance. In any event, the mandate of subs(1) stands unqualified. 17 The Crown submitted that the scheme of s44 would be subverted if the power exercised in the present case were available. An effective non-parole period would be fixed without compliance with s44(2). 18 In our view the answer lies in s12(3) which stipulates that, subject to s99, Part 4 of the Act (in which s44 is found) does not apply to a sentence of imprisonment the subject of an order under s12 except to the extent to which it deals with setting the term of the sentence. The setting of a non-parole period for a sentence is not the setting of the term of the sentence, as a comparison of pars (a) and (b) of s44(1) makes plain. Section 99 merely addresses the consequences of revocation of a good behaviour bond. 19 The opening words of s12(3) are curiously expressed in that s99 is not in Part 4. The sense appears to be that Part 4 does apply where the court is exercising a power after the revocation of a good behaviour bond, but not otherwise. 20 We have had the benefit of reading the judgment of Sully J in draft. The matters raised by his Honour certainly raised in our minds further doubts as to the intended scope of s12. It is very curious that there is no legislative direction to comply with the significant procedural steps laid down in provisions such as ss44, 47-49 and 52(1)(b). (There is of course no prohibition upon adopting these procedures.) It is possible that those responsible for drafting the Act thought that the infinite variety of circumstances that might arise under s12 made it too difficult to incorporate these aspects of Part 4. A more likely explanation is oversight. Either way, the court is left to do its best with what remains and we find s12(3) sufficiently intractable. 21 What was done in the present case could have been achieved by alternative methods that complied with s44 and stayed in the mainstream of Part 4. It might therefore have been argued that resort to s12 involved an error falling within the scope of House v The King (1936) 55 CLR 499 in the particular case. We express no view about such hypothetical point. No such argument was raised by the Crown in this appeal. The only challenge to the sentence was as to its legality in the sense of the judge's power to impose it. It was not submitted that Judge Phegan erred in the exercise of his discretion to choose between a suspended sentence and a sentence containing a non-parole period. 22 We would dismiss the appeal. 23 SULLY J: I have had the benefit of reading in draft the joint judgment of Mason P and Dowd J. I adopt gratefully their Honours' canvass of the relevant facts, legislation and submissions. 24 I regret that I am unable to join the making of the orders proposed by their Honours. In my opinion the Crown appeal should be allowed; the sentence imposed in the District Court should be quashed; and the sentencing of the respondent should be remitted, pursuant to s.12(2) of the Criminal Appeal Act 1912 (NSW), to the District Court there to be dealt with according to law. 25 In my opinion a correct construction of the relevant provisions of the Crimes (Sentencing Procedure) Act 1999, ["the Act"], entails the following propositions:

[1] The first thing that has to be resolved by a Judge who is considering how best to deal with a particular offender is the question whether the offender should be sentenced to imprisonment at all: see section 5(1) of the Act.

[2] Among the matters to be considered in that connection is the range of alternative non-custodial penalties for which Division 3 of Part 2 of the Act makes provision. There are five such non-custodial options. They are:

(a) a community service order pursuant to section 8 of the Act;

(b) a good behaviour bond pursuant to section 9 of the Act; (c) an order of dismissal, or an order of conditional discharge, pursuant to section 10 of the Act; (d) an order of deferral of sentence pursuant to section 11 of the Act;

(e) a suspended sentence pursuant to section 12 of the Act.

[3] Should the sentencing Judge conclude that it is appropriate to proceed in any of the ways for which provision is made in sections 8, 9, 10 or 11 of the Act, then it will not be necessary for the Judge actually to pass any sentence of imprisonment as part of the procedure giving effect to the particular non-custodial option upon which the Judge has settled.

[4] By contrast, the terms of section 12 of the Act make plain that, although the section 12 option is a non-custodial alternative to actual imprisonment, it is nevertheless an integral part of the requisite sentencing procedure pursuant to section 12 that there be actually passed a sentence of imprisonment.

[5] If, therefore, a sentencing Judge decides that the options available pursuant to sections 8, 9, 10 and 11 of the Act are not appropriate in the particular case at hand, then, whatever else is done by the Judge, he must decide upon, and actually pass, a sentence of imprisonment.

[6] That will entail, in turn, and initially, a decision by the sentencing Judge as to the appropriate term of the proposed sentence: that is to say, the appropriate duration of the sentence without regard to the questions whether a non-parole period must or should be set, and if so, the appropriate duration of any such non-parole period.

[7] The term of the sentence having been thus set according to proper sentencing principles, the sentencing Judge must next decide whether the sentence is to be carried into execution forthwith; or whether the execution of the sentence is to be suspended pursuant to section 12 of the Act. The requisite considerations appropriate to the making of a proper choice as between those two basic alternatives are canvassed in the decision of the High Court of Australia, Dinsdale v The Queen (2000) 175 ALR 315. Those matters do not need any present detailed consideration.

[8] If the sentencing Judge comes to the conclusion that the sentence should be executed forthwith rather than suspended, then he must choose how effect is to be given to that execution of the sentence. In that connection the sentencing Judge has three choices: first , to proceed in accordance with Parts 3 and 4 of the Act; that is to say, relevantly, by setting a non-parole period as required by section 44 (1)(b) of the Act, or by declining to set a non-parole period, as permitted by section 45 of the Act, and by thereupon committing the offender, accordingly, to full-time imprisonment; secondly , by ordering that the sentence be served by way of periodic detention, in which case effect must be given to the relevant provisions of Part 5 of the Act; or, thirdly , by ordering that the sentence be served by way of home detention in which case effect must be given to the relevant provisions of Part 6 of the Act.

[9] Whether an offender is sentenced to full-time detention, to periodic detention, or to home detention, that which is to be served in any such case is the term of the sentence: that is to say, the overall sentence of imprisonment, or what used to be called the head sentence. Even in a case in which a non-parole period is in fact stipulated by the sentencing Judge, it remains the fact that the offender is not sentenced to imprisonment for the duration of the non-parole period, but is sentenced to imprisonment for the term overall of the sentence, the non-parole period doing no more than to stipulate a minimum portion of the term of the sentence which must be served in any event.

[10] If the scheme of the Act, construed correctly, yields the foregoing propositions, then it seems to me better to accord with that scheme so to construe section 12 of the Act as to entail that, if a sentencing Judge decides that the proper application of correct principle justifies a suspended sentence, then that which is to be suspended in its execution is the term of the sentence; that is to say the entirety of the sentence upon which the Judge has decided.

[11] In my opinion, that conclusion is strengthened by the provisions of section 12(3). That sub-section excludes the operation of Part 4 of the Act to a sentence of imprisonment, the execution of which is suspended pursuant to section 12, "except to the extent to which it deals with setting the term of the sentence" . It follows that a sentencing Judge who has decided upon a term of imprisonment, the execution of which may properly be suspended pursuant to section 12 of the Act, is not required to fix a non-parole period. The reason for that is, in my opinion, that it makes no sense to require that a non-parole period be set in respect of the term of a sentence, the entirety of which it is proposed to leave unexecuted, but on foot pursuant to section 12 of the Act as a non-custodial alternative punishment. I think that some support, at least, is found for that view in the following brief observations made by the sponsoring Minister during the course of the Second Reading speech on the Bill for the Crimes Legislation Amendment Act 2000 : "Section 12(3) generally provides that when a sentence is suspended the court is not required to set a non-parole period for the sentence, but such a period is to be set under section 99 should a breach of the good behaviour bond during the suspension result in the removal of the suspension of the sentence."

[12] Further in connection with section 12(3), its reference to section 99(1) of the Act seems to me to sit comfortably with the other propositions that I have suggested to follow from a correct construction of the Act. If a sentence to a term of imprisonment is suspended in its execution pursuant to section 12(1)(a), then there must be a concomitant requirement that the offender enter into a good behaviour bond as stipulated by section 12(1)(b). If that bond is breached, then the bond is liable to be revoked. If the bond is in fact revoked, then the sentence, the execution of which had been until then suspended, will be executed accorded to its tenor; but the way in which the sentence will be so executed will entail, once again, a choice among the possibilities offered by Parts 4, 5 and 6 of the Act as I have previously herein discussed those various Parts. Those considerations, also, seem to me to strengthen my preferred construction of Section 12(1)(a) of the Act. For the initial focus of Parts 4, 5 or 6 of the Act, if activated pursuant to section 99, continues to be the entirety of the term of the sentence of imprisonment.

[13] All of the foregoing propositions lead, in my opinion, to the conclusion that a sentencing Judge who is proposing to proceed in accordance with section 12(1) of the Act cannot order the suspension of the execution of anything other than the entirety of the term of the sentence of imprisonment upon which the Judge has, previously, settled as appropriate in the particular case. The approach adopted in the present particular case by the learned sentencing Judge in the District Court was to the contrary; and was therefore, in my respectful opinion, wrong in law. 26 I propose to make some further observations. They are not, strictly speaking, necessary to the decision of the one narrow question of law fundamental to the present Crown appeal. They seem to me, however, to arise in connection with any attempt to give practical effect in a particular case to the sentencing option contemplated by section 12 of the Act. It might be, therefore, useful to say something about them.

[1] The period for which the execution of a sentence may be suspended pursuant to section 12(1)(a) is not specified except to the extent of the provision that the period of suspended execution may not exceed the term of the sentence of imprisonment. It is, presumably, the intention of Parliament that the period of suspended execution of a sentence should be long enough to provide in a real sense an opportunity for the offender to demonstrate both the will and the capacity to rehabilitate. If that be so, then it seems to me that some consideration might usefully be given to amending section 12(1)(a) so as to achieve something comparable to what is achieved by the provisions of section 44(2) of the Act concerning the setting of a non-parole period.

[2] The intention behind section 12(1)(b) is, presumably, that the term of the good behaviour bond should be such as will provide a real and substantial sanction in aid of the achievement of that rehabilitation which is, presumably, the objective of the suspension authorised by section 12(1)(a). If that be so, then it would make sense to provide specifically that the term of the sanctioning good behaviour bond is to be the same as the term of the suspended execution of sentence.

[3] If an offender breaches a section 12(1)(b) good behaviour bond, then the consequences are clear. The bond may be revoked; and if it is revoked then section 99 will operate in the way to which I have previously herein referred. What is not clear is what is intended to happen in the event that the offender adheres to the requirements of the good behaviour bond for the entirety of its stipulated duration. I imagine that it must have been the intention of Parliament that, in such a case, the successful fulfilment of the requirements of the good behaviour bond would entail that the suspended execution of the sentence of imprisonment would become permanent. Consideration might usefully be given to saying so in clear terms and by way of an appropriate statutory amendment. **********

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