Section 19B Crimes Act (Commonwealth)
10 The legislative scheme constituted by s19B to s20AC was inserted into the Crimes Act 1914 (Cth) by the Crimes Amendment Act 1982 (Cth). Section 19B and s20 of the Crimes Act 1914 (Cth) before this amendment referred, as they still refer, respectively, to conditional release with or without conviction. There was, however, no reference to rights of appeal. Such reference was introduced by the 1982 amendments.
11 The Commonwealth Attorney, when introducing the Amendment Bill, noted that it was, in part, based on the Report of the Australian Law Reform Commission Sentencing of Federal Offenders Report No. 15 (1980). The Attorney said:
"Certain of the Commission's recommendations are given effect to in the present Bill and other provisions of the Bill reflect the experience of my Department in the day to day administration of the Crimes Act ." (Senate, Hansard, 15 October 1981 p1291)
12 In par 371 of its Report on the Sentencing of Federal Offenders, the Law Reform Commission referred to the High Court's decision in Griffiths v R (1976-1977) 137 CLR 293. In that case the High Court had held that an appeal to the Court of Criminal Appeal under s5D of the Criminal Appeal Act 1912 was incompetent because the trial judge's action in releasing an accused on remand was not a "sentence" within the meaning of s5D and, accordingly, the Court had no jurisdiction to hear an appeal by the Attorney General. In the course of the reasoning in Griffiths, the members of the High Court considered the meaning of both "conviction" and "sentence".
13 In R v Carngham (1978) 140 CLR 487, the Court considered these provisions again, leaving open the question of whether or not an order for conditional release after conviction, under s20 of the Crimes Act 1914 in its then form, was a "sentence" from which the Attorney General could appeal.
14 In its Report, the Law Reform Commission made particular reference to s20. It also emphasised the fact that this line of authority restricted appeals by offenders as well as the Crown.
15 In New South Wales, the effect of Griffiths was restricted to doubts about appeals from an order granting conditional liberty after conviction, whether at common law or under s558 of the Crimes Act 1900 (NSW) (the equivalent of s20 of the Commonwealth Act) and the absence of a right to appeal on the part of the Crown. Section 556A(3) of the New South Wales Crimes Act already conferred a right on an offender to appeal on the ground that he or she was not guilty. The form, but not the substance of this right to appeal, was amended by a new s556A(3) substituted by the Crimes and Other Acts (Amendment) Act 1974. The primary response to Griffiths in New South Wales was the insertion of s2(2) into the Criminal Appeal Act, by the Criminal Appeal (Crimes) Amendment Act 1979.
16 When, by the Justices (Appeals) Amendment Act 1988, the Director of Public Prosecutions was given a statutory right to appeal against sentences and other orders imposed by magistrates in criminal matters, the legislature chose to follow the model previously established, by including as s131AA(2) of the Justices Act 1902, the extended definition of "sentence" in virtually identical terms to s2(2) of the Criminal Appeal Act.
17 When the Commonwealth Parliament made the 1982 amendments to the Crimes Act it adopted virtually the same terminology as s556A(3) of the New South Wales Act, in s19B(3)(a) of the Commonwealth Act. It pursued a similar drafting technique to s2(2) of the Criminal Appeal Act in s19B(3)(b) and s20(3). However, it employed different terminology.
18 The Appellant submitted that on the proper construction of s19B(3), no right of appeal was conferred on the Crown. In our opinion, the Parliament intended to put beyond doubt the position as to the Crown's right of appeal in the cases of conditional release, with and without conviction, for which s19B and s20 of the Crimes Act 1914 respectively provide.
19 In our opinion, the intention of s19B(3)(b) is that the Crown, relevantly the Commonwealth Director of Public Prosecutions (Rohde v Director of Public Prosecutions (1986) 161 CLR 119), has a right of appeal from the dismissal of the charge or the discharge of the person as if it were a conviction. The distinction between "the person shall have" in s19B(3)(a) and "there shall be such rights" of appeal in 19B(3)(b), indicates that the Crown is intended to be accommodated within s19B(3)(b). The change of language is significant and indicates a clear intention that appeals under par (b) are not limited to appeals by the offender as are those under par (a).
20 The legislative history of the subsection, to which we have referred above, supports this construction. The Appellant's submission that the Crown was not given a right of appeal under s19B(3)(b) should be rejected.
21 The operation of s19B(3)(b) turns on the phrase "the manner in which the person is dealt with". That appears in both the introductory words to the paragraph and in subpar (ii) thereof. The same clause occurs in s20(3).
22 The words "dealt with" are of broad import. A wide variety of matters capable of being described as "dealings" are referred to in ss19B(1) and (2) and in s20. For example, "dismiss the charge"; "discharge the person"; "security … to the satisfaction of the court"; "conditions"; specification of a "period"; "make reparation or restitution or pay in compensation or … costs"; "condition … as the court thinks fit to specify"; the explanation in subsection 19B(2); etc.
23 The submission of the Appellant was that the clause "manner in which the person is dealt with" should not be construed as extending to the formation of an opinion under par 19B(1)(b) to the effect that it was "inexpedient to inflict any punishment" on the offender or that "it was expedient to release the offender on probation". It was also submitted that the words should not be construed as extending to the order dismissing the charge or discharging the person under s19B(1)(c) or (d), relevantly the latter.
24 Notwithstanding the breadth of the phrase "manner … dealt with", it does not encompass every decision in s19B(1) and (2). Under s19B(1)(b) the Court must be "satisfied … that the charge is proved". That finding is the subject of an express right of appeal in s19B(3)(a). This may have been inserted ex abundanti cautela. It establishes a right of appeal for the offender. By omission it confirms that the Crown has no right of appeal from a failure to find a charge proved. However, it does have a substantive operation. The phrase "manner … dealt with", does not extend to the 'dealing' by way of a finding of not guilty.
25 The Appellant submits that the finding of inexpediency of punishment, or of dismissal or discharge, should be regarded as equivalent to a finding of not guilty.
26 The order dismissing a charge or discharging an offender, impinges directly on the offender. In our opinion, an order with such an effect clearly falls within the natural and ordinary meaning of 'manner in which the offender is dealt with'. The Appellant's submission to the contrary should be rejected. The position is not so clear with respect to s19B(1)(b): the finding of "inexpedient to inflict punishment".
27 In R v On Clinic Australia Pty Limited (unreported NSWCCA 6 November 1996) the Court of Criminal Appeal (presided over by Hunt CJ at CL) considered whether an order under s19B(1)(d) of the Act was a manifestly inadequate punishment. Smart J, with whom the other judges agreed in this respect, said that, "in deciding whether the sentence was manifestly inadequate it is necessary to determine whether any of the factors enumerated in s19B(1)(b) exist" and hence whether it was open to the sentencing judge to conclude that it was inexpedient to inflict any punishment.
28 The question now before the Court was not raised. However, no member of the Court considered that they should treat the appeal any differently from any other sentence appeal, in the sense that the question of adequacy of the orders made was thought necessarily to involve a consideration of the entire course of the proceedings and the appeal may have resulted in the imposition of a conviction. Having regard to the issues in that case, it affords no authority capable of determining the issue we are considering.
29 It is appropriate to approach the construction of s19B(3) by the application of the well known presumption that the Parliament does not intend to modify fundamental principles or common law rights except in clear and unambiguous language. The common law doctrine as to the effect of a verdict of acquittal is such a fundamental principle. (See R v Snow (1915) 20 CLR 315 at 322-323; Wall v R; Ex parte King & Won & Wah On (No. I) (1927) 39 CLR 245 at 250; Thompson v Mastertouch TV Services Pty Ltd (1979) 38 FLR 397 at 407-411; Rohde v Director of Public Prosecutions supra at 128-129; Bropho v Western Australia (1990) 171 CLR 1 at 17-18. See also the Sir Ninian Stephen Lecture of Spigelman CJ "Statutory Interpretation: Identifying the Linguistic Register" to be published in the Newcastle University Law Review accessible at www.lawlink.nsw.gov.au/sc.)
30 However, careful consideration of s19B does not suggest that the Parliament intended to assimilate a finding of inexpediency to an acquittal.
31 Section 19B(3)(b) creates the same rights of appeal that would be available if there had been a conviction and sentence, where (relevantly) a person is discharged without a conviction despite the charge being proven. The satisfaction of the Court that it is inexpedient to inflict any punishment etc cannot be regarded as equivalent to a finding of not guilty (ie an acquittal) since the right of appeal is that which the Crown would have if the person were convicted.
32 Moreover, satisfaction that a charge is proved, which must be beyond reasonable doubt, is a finding of guilt. That the offender is guilty of the charge is a most significant consideration in correctly characterising the substantive meaning and operation of the section. A finding of guilt, for the purpose of prescribing the rights of appeal, is to be regarded as a conviction although the formality of entering a conviction had been stayed because the court was of the opinion that it is inexpedient to punish the guilty person.
33 The varying character of the term "conviction" is discussed in Cobiac v Liddy (1969) 119 CLR 257 by Windeyer J at 270 ff where his Honour, among other things, said, in relation to a South Australian provision similar to s19B(1)(c):
"A condition precedent of an order under s4(1) of the [Offenders Probation] Act is that the court of summary jurisdiction thought the charge was proved. It seems to me therefore that if an offender who had had the benefit of the dismissal of a complaint pursuant to the subsection came again before a court, charged with having again committed the same offence, it would properly be called his second offence of the same kind, notwithstanding that formerly he had been formally not convicted."
34 This approach is inconsistent with assimilating a dismissal following proof of guilt with an acquittal. The decision not to proceed to conviction under s19B(1)(d) is only a stay of execution. It is not analogous to an acquittal. Thus s20A(5) provides that an inexcusable failure to fulfil the conditions of the order made following a discharge may result in its revocation, the conviction of the offender and dealing with him as such. Whilst a dismissal of the charge is not revocable, the proceeding should be characterised in the same way as a proceeding under s19B(1)(d) and be regarded, therefore, as analogous to or part of a sentencing process rather than the guilt finding or conviction process. As Kirby J observed in Pearce v R (1998) 156 ALR 684 at 715 "entering a conviction is itself part of punishment", and has long been so regarded (see also R v Ingraessia (1997) 41 NSWLR 447 per Gleeson CJ at 449). That this is so is implicit in the scheme of s19B(1) itself.
35 In the process of forming the opinion of 'inexpediency' or of "expediency" under s19B(1)(b), the Court must "have regard to" a range of personal characteristics of the individual. Although the formation of the opinion does not directly impinge upon the offender, nevertheless the process of assessment involves both the characteristics of the offender and the circumstances of the offence committed by the offender.
36 Assimilating the manner in which the person is dealt with to a sentence passed upon a conviction invokes the process by which a sentence is reviewed on appeal. Whilst, in form, the Crown appeals against a sentence imposing, say, a particular fine or term of imprisonment, it must point to an error in the process that has led to the sentence under attack or, if it cannot show some explicit error, it must demonstrate that the sentence itself is so wrong that such an error must have occurred. On the appeal, the court will consider the various relevant elements determining or, at least, influencing sentence which will certainly include the personal characteristics of the prisoner, the nature of the offence and the circumstances in which the offence was committed (essentially the same matters required to be considered under s19B(1)) and, having regard to these matters, the appropriateness of the punishment inflicted.
37 In our opinion, the phrase "in respect of the manner in which the person is dealt with" refers not only to the orders made under s19B(1)(c) and (d) of the Act but also to the determination of inexpediency of which such an order is a consequence. The phrase "the manner in which the person is dealt with" evinces an intention to describe the entire process resulting in and including the orders ultimately made. The phrase, though awkward, is in ordinary rather than technical language and connotes a general rather than a particular reference.
38 Section 19B(3)(b) and s20(3) confer "such rights of appeal in respect of the manner in which the person is dealt with" as there would have been if "the manner in which he is dealt with had been a sentence". Neither section creates a right of appeal. Each picks up and applies existing rights of appeal. On the submissions made to this Court, such rights of appeal must be found by the application of either s39 or s68 of the Judiciary Act 1903 (Cth) (Judiciary Act). (Section 79 of the Judiciary Act was not relied on).