JUDGMENT
1 SPIGELMAN CJ: In the course of sentencing the Applicant, her Honour Judge Backhouse approached the sentencing exercise on the basis that the sentencing practice at the time of the commission of the offences during the 1980's should be applied, rather than the higher level of severity that, it was alleged, had been adopted since that time. If, as has proven to be the case, this Court were to allow the appeal and conduct the sentencing task afresh, then the issue arises as to whether this was an appropriate sentencing principle to apply.
2 The Court has sat a bench of five by reason of the fact that a conflict has emerged in previous judgments of the Court on this matter.
3 The proposition was put to the Court in R v PLV (2001) 51 NSWLR 736. In that case I said:
"[93] The Applicant was sentenced to a period of two years with a very short non-parole period of three months. It was submitted that by reason of delay he was exposed to punishment as an adult and to a sentencing regime which it was submitted was "harsher" than that which existed in New South Wales at the time the offences were committed. The Court was referred to no authority in support of the proposition that sentences should be in accordance with practices at the time an offence was committed, rather than in accordance with practices at the time of conviction. I see no reason why this Court should establish such a principle for the first time.
[94] I do not understand how a Court would go about determining what it would have done twenty years before. The balance between the various objects of sentencing - deterrence retribution, rehabilitation - does vary over time. The proposition for which the Appellant contends is both artificial and inappropriate. Sentencing should be based on practices extant at the time of conviction."
4 I went on to indicate that even if the principle were established, it would not avail the Applicant in that case, by reason of the fact that there was no material before the Court to indicate that sentencing practices had in fact become more harsh and that, in any event, the sentence imposed in that case was likely to have been regarded as lenient at any time. Simpson J agreed with me. Smart AJ took a different view, although not in the result. His Honour took into account the sentence which would have been imposed in the mid 1970's, when the offences occurred ([106]).
5 It now appears, contrary to the position as it appeared to the Court in PLV, that there was prior authority for the proposition. In R v Shore (1993) 66 A Crim R 37, Badgery-Parker J, with whom Mahoney JA and Hunt CJ at CL agreed, expressly approved at 42 the trial judge's statement of his approach as follows:
"In my opinion I should, so far as I am able to do so, seek to impose upon the offender a sentence appropriate not only to then applicable statutory maxima but also to then appropriate sentencing pattern. That is by no means easy, but in my view I must endeavour to do so."
6 In Shore the charges concerned conspiracy to import cannabis resin and the possession of narcotic goods reasonably suspected of having been imported in Australia. The Applicant had originally been arrested in August 1974, but absconded while on bail. He was re-arrested in November 1990 and extradited to Australia. The Court produced a schedule of sentences outlining the sentencing practice in or about 1974. The schedule was structured in columns of the drug, the quantity, the plea and the sentence. In the course of his reasons, Badgery-Parker J also referred to the significance for the sentencing task of identifying the role performed in the importation by the person sentenced. His Honour emphasised the difficulty of the task of reconstructing a past sentencing pattern, but concluded that the sentence imposed in the case was at the upper limit of what would have been regarded as appropriate in 1974.
7 The principle approved in Shore - that a sentencing judge should have regard to the range of sentences imposed at the time of the commission of the offence - was applied by a two judge bench of this Court in R v Watson [1999] NSWCCA 227 at [26]. That case was concerned with sexual assault offences that had occurred during the 1970's, including counts under s61D of the Crimes Act. Levine J, with whom Smart AJ agreed, found guidance as to sentencing practices at that time from Ivan Potas Sentencing Violent Offenders in New South Wales, published in 1980.
8 The issue has also arisen in this Court in R v Moon (2000) 117 A Crim R 497 where Whealy J applied Shore and referred to Watson at [23]. His Honour also emphasised the difficulty of applying the principle:
"[23] Although the principle stated in Shore is clear, its application in a particular appeal is often a difficult matter. First, there is a need to have a clear picture as to the range of penalties imposed at the earlier point of time. In Shore's case for example, there was an extensive analysis of over twenty cases of importation of drugs (see schedule, Shore at 49). Second, the perceived difference between range of sentences disclosed at the earlier point of time and the sentence imposed by the sentencing judge may reveal a discrepancy. Nevertheless it may be one of not so high a kind that the appellate court should interfere (Shore at 43)."
9 To similar effect, are the observations of Smart AJ in PLV at [107] where his Honour said:
"The judge correctly had regard to the position which existed in 1974 when the offence was committed and the applicant's present position. There are practical difficulties in trying to recapture the situation which existed twenty-five years ago. Reference to the odd decided case may not be helpful in trying to obtain an overall picture. Whilst it is not perhaps the best source, there are judges who have a reasonably good recollection of the practice in the courts and the sentences imposed in the period 1965 to 1980. There are judges who do not have such knowledge. If there is no substantial evidence as to that practice and the sentencing judge is not aware of them then they obviously cannot be taken into account."
10 These practical difficulties were the basis of my observation in PLV at [94] that the attempt to conduct a sentencing exercise on this basis is "artificial". Nevertheless, in view of this line of authority of which I was unaware at the time of PLV, it is necessary to re-consider the opinion I expressed in that judgment that a prior sentencing pattern was irrelevant.
11 Sentencing practices change and can do so in both directions. Community attitudes to particular offences is not static. Matters which were once regarded as significant crimes, e.g. consensual homosexual intercourse, came to be not so regarded and, eventually, ceased to be offences at all. For a period prior to the repeal of the relevant legislation, the courts would have imposed lower sentences than they had at a previous time. On the other hand, some matters, perhaps including sexual assault, have come to be regarded as requiring increased sentences. This may be by reason of a change of community attitudes. Alternatively, it may be as a result of a change in objective circumstances, e.g. an increase in prevalence of the offence.
12 The basic submission made on behalf of the Applicant in this case was to the effect that there was an element of unfairness involved in sentencing an offender on a harsher basis than would have been the case if he had been sentenced at a time reasonably proximate to the commission of the offence. This was said to be so at least in a case where the offender was not himself or herself responsible for the delay, other than in the sense that the offender had not confessed to the crime. In the present case, the delay occurred by reason of the period that elapsed before the Applicant's daughter complained about his conduct.
13 Counsel for the Applicant submitted that an offender was entitled to the benefit of a change in sentencing practice which led to lower than previous sentences, but would not be subject to a higher level of sentence when practice had changed in that direction.
14 Where the sentencing practices have increased by reason of greater salience being given to issues of general deterrence, e.g. because of increased prevalence, the practice at the time of conviction would appear to be entitled to greater weight. More fundamentally, my first reaction to this submission propounded on the part of the Applicant was to reject it as illogical. Why should this principle, if there be one, operate only in favour of an offender?
15 On further reflection, I recalled the classic aphorism of Oliver Wendel Holmes Junior: "The life of the law has not been logic: It has been experience" (Oliver Wendel Holmes Junior, The Common Law 1882 Macmillan & Co, London at 1)
16 Furthermore, I recalled Fullagar J's warning in Attorney General (NSW) v Perpetual Trustee Co Limited (1952) 85 CLR 237 at 285 to resist:
"… the temptation, which is so apt to assail us, to import a meretricious symmetry into the law."
17 A similar debate has arisen in the context of increases in the maximum penalty for an offence between the commission of the offence and trial. A number of English decisions held that the maximum at the date of the conviction is applicable (DPP v Lamb [1941] 2 KB 89; Buckman v Button [1943] KB 405 and R v Oliver [1944] KB 68). These decisions have been subject to criticism in England and would now be inconsistent with Article 7 of the European Convention of Human Rights (see Bennion, Statutory Interpretation, 3rd Edition at pp235-240). The decisions have not been followed in Australia (see Samuels v Songaila (1997) 16 SASR 397; Richardson v Brennan (1966) WAR 159; Dare v Stokes (1982) 32 SASR 402; Bakker v Stewart (1983) VR 117; Pearce & Geddes, Statutory Interpretation in Australia, 5th Edition at par 9.19). The issue in this line of cases is one of statutory interpretation and the strength of the presumption against retrospectivity.
18 The position was put beyond doubt by statute in New South Wales, with similar provisions to be found for the Commonwealth in the Crimes Act 1914 s4F; in Queensland, Acts Interpretation Act 1954 s20C; in the ACT, Interpretation Act 1967 s33A; in Victoria in the Sentencing Act 1991 s114. In New South Wales, the provision is now found in s19 of the Crimes (Sentencing Procedure) Act 1999 (formerly s55 of the Interpretation Act 1987) which states:
"19(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.
(2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.
(3) In this section, a reference to a penalty includes a reference to a penalty that is expressly the maximum or minimum penalty."
19 As can be seen by contrasting subs 19(1) and 19(2), the legislature has applied the policy that offenders receive the benefit irrespective of the change, i.e. if the penalty goes up, they are not subject to it, if it goes down, they receive the benefit of it. This applies a notion of fairness which also appears to underlie some of the reasoning in Samuels v Songaila where Bray CJ said at [404]:
"It may be that the courts would be more ready to find a retrospective intention in mitigating legislation."
20 Similarly, King J said at [420]-[421]:
"… The presumption against retrospectivity is stronger where the provisions impose some additional burden, obligation or penalty. If Parliament were to reduce a penalty, it might appear that Parliament had judged the former penalty to be harsher or unjust and therefore intended that the harshness or injustice should not be continued even in relation to offences already committed."
21 To similar effect, the Full Court of the Supreme Court of Victoria in R v Moreton [1986] VR 863 at 866, in a sentencing context, said at 867:
"The fact that a benefit is conferred outweighs the presumption against retrospectivity."
22 Accordingly, in that case, the Court applied a new statutory provision which required the Court to take into account a plea of guilty when fixing a sentence, which applied in circumstances in which the pre-existing sentencing practice of the Court would not have given credit for the plea.
23 Although phrased in the language of statutory interpretation and the application of the presumption against retrospectivity, as was appropriate to the issues before the courts, the approach reflected in these decisions may be equally appropriate for the consideration of the effect of a change in sentencing practice by the courts.
24 Further assistance is provided in the reasons in Radenkovic v The Queen (1991) 170 CLR 623. That case concerned the determination of the appropriate approach to be adopted by this Court when it quashed sentences imposed by the sentencing judge before the commencement of the Sentencing Act 1989 and came to re-sentence the convicted person after the commencement of that Act. The difficulty arose because of the substantial benefit that prisoners had received from the operation of a system of remissions which it was a purpose of the 1989 Act to abolish. Pursuant to transitional provisions, prior sentences had been administratively transformed into the new terminology of minimum and additional terms on a basis that all prisoners would receive the benefit of all remissions. This Court had determined all remissions would be credited to the prisoner when re-determining a sentence in this Court, as had been done administratively for all other prisoners (see R v T (1990) 47 A Crim R 29).
25 In Radenkovic, Mason CJ and McHugh J in approving the approach adopted in T said at 632:
"In the context of an appeal against sentence, when a Court of Criminal Appeal is called upon to re-sentence because it had quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be re-sentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood. He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient. In our view it would require a very clear indication of statutory intention to displace that entitlement ." (cf at 648 per Toohey and Gaudron JJ)
26 It is, of course, clear in the context of statutory interpretation that where Parliament manifests an intention that a new sentencing regime operate retrospectively, the courts will give effect to that intention (see Siganto v The Queen (1998) 194 CLR 656 at 662). It may also be the case that the purpose to be served by a change in sentencing practice would require the Court to take into account the new practice even when sentencing for an offence that occurred many years before e.g. an increased emphasis on general deterrence because of prevalence. Nevertheless, that will not necessarily be so.
27 Section 19 of the Crimes (Sentencing Procedure) Act 1999 and its predecessor reflects a principle of perceived fairness applicable to maximum and minimum penalties, which it is appropriate to adopt for other aspects of the exercise of the sentencing discretion.
28 It is not necessary to delve into the difficult issue of whether the common law can be developed by analogy with statute, at least when so expressed in what the High Court referred to as "that simple form" (see Lamb v Cotogno (1987) 164 CLR 1 at 11). Nor even in what the High Court then referred to as the "attenuated version" of the same idea reflected in the reasons of Lord Diplock in Warnink v J Townend and Sons Co Ltd [1979] AC 731 at 743). (See also Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 109 esp at [19]-[28].)
29 It is sufficient for present purposes to employ the statute as reflecting a principle of fairness that it is appropriate to adopt, in much the same way as the High Court referred to statute in determining issues that involved a change in community attitude about whether it was possible for a man to rape his wife.
30 In The Queen v L (1992) 174 CLR 379, Mason CJ, Deane and Toohey JJ said at 390:
"In any event, even if the respondent could, by reference to compelling earlier authority, support the proposition that is crucial to his case, namely, that by reason of marriage there is an irrevocable consent to sexual intercourse, this Court would be justified in refusing to accept the notion that is so out of keeping with the view society now takes of the relationship between the parties who are married. The notion is out of keeping also with recent changes in the criminal law of this country made by statute , which draw no distinction between a wife and other women in defining the offence of rape. It is unnecessary for the Court to do more than to say that, if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law." [Emphasis added]
31 Similarly, I am now satisfied, after assessing the above authorities, that it is, "out of keeping" with the provisions of s19 of the Crimes (Sentencing Procedure) Act 1999, for this Court to refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender. Accordingly, the view I expressed in PLV was incorrect.
32 As to the facts of this case, I agree with the reasons of Sully J and the orders his Honour proposes.
33 MASON P: A bench of five sat to resolve an issue of sentencing principle on which earlier Courts had diverged unwittingly.
34 The issue is this: In cases where the statutory maximum penalty for an offence has not been altered, should a court sentencing for an offence committed in the distant past seek to apply the appellably acceptable "intuitive synthesis"/"tariff/"guideline" of today or that which was prevalent at the time of the offence?
35 (The alternatives point to different theoretical approaches to the sentencing task, some stemming from the common law, others based on overriding statutory constructs. The differences do not matter in the present context. Common to each is the notion that excessively high or excessively low sentences will be disturbed by the Court of Criminal Appeal, thereby promoting principled consistency and equality before the law. I shall use the expression "pattern" to encompass the various alternatives.)
36 We are dealing with situations where the statutory maximum has remained constant and where nothing in the statutory framework gives primacy to the present over the past, or vice versa, as regards the acceptable patterns of sentencing for the same offence.
37 In my opinion the statutes referred to by the Chief Justice whose reasons I have had the benefit of reading and the decision in Radenkovic v The Queen (1991) 170 CLR 623 deal with different situations to that presented here. They concern situations where statute has impacted to some degree on the appropriate sentence. With respect to those who see it otherwise, I do not find them analogous. This relieves me of the burden of considering whether it is legitimate to look at them in seeking to discern a principle of Australian common law.
38 Furthermore, the issue does not concern itself with the distinct need to ensure fairness to the individual prisoner in sentencing for a stale crime (cf R v Todd [1982] 2 NSW LR 517 at 519, Mill v The Queen (1988) 166 CLR 59 at 64, R v PLV (2001) 51 NSWLR 736 at 746-8).
39 The question has seldom presented itself. The reasons include (a) the relative infrequency with which crimes are prosecuted long after their commission; (b) sentencing patterns seldom vary perceptively over time; and (c) in this State the statutory maximum penalty often changes from time to time.
40 Proposition (a) is no longer true in relation to child sexual abuse. In recent years there have been many trials involving events occurring 20 or 30 years previously.
41 The problem thus identified has spawned conflicting decisions in this Court. No one's researches have revealed discussion elsewhere, although I would be amazed if this jurisdiction were the only one in the common law world to have faced the issue.
42 The competing authorities are R v Shore (1993) 66 A Crim R 37 and PLV (2001). In his judgment in the present case Spigelman CJ cites the key passages and refers to two pre-PLV decisions that cited Shore. PLV was decided by a Court that had not been referred to the earlier precedents.
43 I prefer the judgment of the Chief Justice in PLV. The core reasons were:
94. I do not understand how a court would go about determining what it would have done twenty years before. The balance between the various objects of sentencing - deterrence, retribution, rehabilitation - does vary over time. The proposition for which the appellant contends is both artificial and inappropriate. Sentencing should be based on practices extant at the time of conviction.