The repeal of the offence under s 79:
39 I turn to the appellant's next contention concerning the repeal of the offence of buggery in s 79. The appellant submitted that that part of s 79 which created the offence known as buggery was repealed by legislation which commenced on 8 June 1984, carrying with it certain consequences for sentencing purposes.
40 Having regard to submissions advanced by the appellant in support of this ground which I will turn to in a moment, it is appropriate to again refer to what happened in respect of this offence, the subject of the first count. In respect of the first charge of the crime of buggery, the appellant requested that pursuant to s 21(1) of the Criminal Procedure Act 1986 (NSW), the Court take into account four further offences. They were listed on a Form 1 signed by the appellant. The form provided that if the appellant was found guilty of the offence of buggery, the appellant could ask for the offences listed in the Form 1 to be "taken into account by the Court in dealing with you for the offence of Buggery". His Honour certified the form to the effect that in sentencing the appellant for the offence of buggery of which he had "been found guilty, the Court had taken into account the "admitted" four offences on the Form 1.
41 Section 21(1) of the Criminal Procedure Act 1986 provides that if a person is found guilty of an offence and the Court is satisfied that the form has been signed and certain other conditions are met, the Court may pursuant to s 21(2), if it thinks fit, when imposing a penalty on the person for "the offence of which the person has been found guilty" take into account all or any of the offences in respect of which the person has admitted guilt.
42 In Morgan (1993) 70 A Crim R 368 Hunt CJ at CL at 371 observed that the only limitation upon the penalty to be imposed when dealing with matters to be taken into account pursuant to s 21 of the Criminal Procedure Act 1986 was, "as s 21(3) says, that the penalty must not exceed the maximum penalty which the Court would have been empowered to impose if no other offence had been taken into account". The sentence of six years imposed by his Honour on the first count specifically took into account the offences listed on the Form 1. In a supplementary submission Mr Byrne SC submitted, that by reason provisions of s 21(3) that the maximum penalty referred to in s 21(3) was in the instant case either no penalty or no meaningful penalty at all and that the sentence able to be imposed if the matters on the sentence were taken into account was therefore no penalty or no meaningful penalty at all. In my view this submission should be immediately rejected because of the statutory provisions of s 21 and s 21(2). Indeed, the consequences of its acceptance would be somewhat remarkable.
43 Next, in his written submission Mr Byrne submitted that the question arose as to whether, because of the repeal of the offence to which the applicant pleaded guilty, any sentence at all should have been imposed. It was submitted that the determination of that question depended upon the application of s 55(2) of the Interpretation Act 1987 to the present circumstances. That section provides:
"If an Act or statutory rule reduces the penalty for an offence, the penalty as reduced 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".
44 It was said that s 55(2) reflected a principle contained in Article 15 of the International Covenant on Civil and Political Rights. Mr Byrne correctly accepted that Article 15 forms no part of the domestic or municipal law of Australia: Dietrich (1992) 177 CLR 292 referred to by Hunt CJ at CL in Kalajzich (1997) 94 A Crim R 41 at 48; Minister for Immigration v Teoh (1995) 183 CLR 273; Civil Aviation Authority v ABC (1995) 39 NSWLR 540 at 558.
45 It was however submitted that s 30 of the Interpretation Act had no relevant application, nor was this provision to be considered in this case. Section 30 provides, relevantly:
(1) The amendment or repeal of an Act or statutory rule does not:
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty
and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted continued or enforced, as if the Act or statutory rule had not been amended or repealed".
46 It is appropriate to mention in passing that s 30 is also reflected in Article 15 of the International Covenant on Civil and Political Rights.
47 Mr Byrne put a number of other arguments in his written submissions. He argued that the principle in s 55 should be generally applied so that, where an offence has been abolished altogether, no penalty should be imposed and this should be particularly the case where the abolition of the offence in question is not accompanied by some associated legislative enactment which covers the question. No authority was cited in support of this submission. The same question of principle founded upon s 55 he submitted, was also relevant to the sentence imposed upon the second count of the indictment, that is, the offence under s 80 of the Crimes Act as it stood in 1981. The offence of attempting to commit the crime of buggery was also abolished by Act 7 of 1984, commencing on 8 June 1984.
48 In putting his oral submissions to the Court Mr Byrne did not, (no doubt for good and valid reasons) make any application to the Court to withdraw the appellant's plea of guilty to the first count of buggery nor indeed, the appellant's plea to the second count: see Boag (1994) 73 A Crim R 35; Ryan (1995) 90 A Crim R 191.
49 Mr Byrne, in oral argument submitted that in the instant case, the repeal of s 79 still meant that a conviction for it could nevertheless stand but that no sentence could be imposed for it, whilst leaving the appellant to be sentenced for the Form 1 offences. He argued that if there had been no Form 1 offences, that notwithstanding that the charge was a valid one, and notwithstanding his plea of guilty to it which was followed by conviction, no penalty could be imposed. This submission should be rejected on the further ground (and there are more fundamental grounds which I will turn to) because of the provisions of s 21(1) of the Criminal Procedure Act. If no penalty could be imposed for the offence of buggery, the subject of count 1, then no penalty could be imposed for the Form 1 offences. A penalty must be imposed for the buggery offence in effect as a threshold condition for taking into account the Form 1 offences. That said the argument advanced by reference to the provisions of s 21(1) and Form 1 does not apply to the sentence imposed on the second count under s 80.
50 Next, Mr Byrne further submitted that the abolition of an offence itself is the equivalent of, and is capable of amounting to a reduction of the penalty for an offence for the purposes of the meaning of s 55(2). Further, or alternatively, he argued that abolition of a penalty for the offence is also effectively a reduction in sentence for the purposes of that provision. With respect these submissions should be rejected.
51 As a matter of construction I do not construe s 55(2) as suggesting that the abolition of an offence, is or is capable of being regarded or treated as involving the reduction of a penalty for an offence. The subject matters are different. To reduce a penalty for an offence leaves the offence on foot, but reduces the punishment for it. In this case there was in fact no reduction of the penalty for buggery. Further, the offence in terms in which it was expressed, was the subject of repeal within the meaning of s 30 of the Interpretation Act with the consequences referred to in that section. Further, in my view to abolish a penalty is also different to the reduction of a penalty. A reduction leaves a penalty on foot, but again reduces the punishment for it.
52 Thus as a matter of statutory construction Mr Byrne's submissions fail. They fail for additional reasons. If Mr Byrne's argument is true that abolition of an offence is capable of being treated as being a reduction of penalty for the purposes of s 55, dealing as that section does with the specific subject matter of reductions of sentence, then it is inconsistent with the general provisions of s 30 of the Interpretation Act. In my view ss 55 and 30 deal with different subject matters with s 55 operating only in respect of the subject matter expressly referred to on its terms, that is, reduction in penalty and with s 30 applying in the case of "repeal". What occurred in this case was a repeal of s 79 of the Act. Such repeal having occurred, the provisions of s 30(1)(c) and particularly s 30(1)(e) continued to apply in respect of penalty. Section 30 addressed the repeal situation, not s 55.
53 That there may be a continuation of liabilities and penalties under a repealed Act is well recognised. Section 30 itself recognises such. Indeed, s 30 of the Interpretation Act in continuing the liability to prosecution for breach of a repealed Act reverses the common law position that a liability to punishment for contravention of a penal statute did not continue after the repeal of the enactment: see R v Scarlett; Ex parte McMillan (1972) 20 FLR 349 per Fox J at 351-352 (a case concerning s 38(d) of the Interpretation Ordinance 1967 (ACT)); Byrne v Garrison (1965) VR 523. In Byrne's case a company director was held to remain liable for a breach of a section of the Companies Act (Vic) notwithstanding the repeal of the section. It also considered the provisions of s 7 of the Acts Interpretation Act 1958 (Vic). True it was a case specifically concerning liability for breach, rather than in terms a liability for punishment for breach of a repealed section but I do not consider, having regard to the provisions of s 30 of the New South Wales Act, that this is a point of material difference. In Samuels v Songaila (1977) 16 SASR 397 liability to a specified penalty was held to be preserved notwithstanding its repeal and substitution by a different penalty. Generally speaking it would seem that, absent an express statutory provision, see for example s 75 of the Defence Force Discipline Act 1982 (permitting a conviction without punishment), ordinarily preservation of an offence preserves the punishment for it.
54 Mr Byrne, alternatively argued that even if his submission as to the application of s 55(2) was not accepted, that nevertheless, no penalty should have been imposed for the first count. This argument was advanced by reference to the decision of Regina v Hartikainen (CCA 8 June 1993, unreported). The submission was that if Parliament increased a penalty for an offence, and the courts are required to give effect to the concerns manifested by Parliament, then by some parity of reasoning if Parliament repeals an offence, then likewise the courts should give effect to such and not impose a penalty for the repealed offence. This submission should be rejected for the reasons already given. There is a distinction between "offence" on the one hand and penalty on the other. Indeed, as I have already indicated it is difficult to conceive how, putting aside an express statutory provision there could be a conviction for an offence without a penalty at all. Even Mr Byrne's suggestion of a nominal sentence for such an offence or a rising of the court sentence still involves a sentence, which is in a technical sense, a form of imprisonment even though the restraint on liberty may operate in fact, only for but a short moment in time. The argument should also be rejected because s 55 deals with the matter on the effect of reduction. Finally the submission by reference to the Hartikainen type argument fails because the law is that the sentence to be imposed is that applicable at the time of the commission of the offence. The applicant suffers no detriment by a subsequent increase in sentence after the commission of the offence. The argument advanced by the applicant, if successful, might suggest a benefit in crime concealment, where an accused might hope for a change in social thinking would be. Victims could suffer a detriment from the success of the argument.
55 To sum up the situation it would seem to me that the provisions of s 30 of the Act apply to the instant case, and not the provisions of s 55: see Beserick (1993) 66 A Crim R 419. In that case as Hunt CJ at CL noted that s 81 (an offence involving indecent assault upon a male) was in force at the time of the offence but that the section had been repealed (at the same time as the repeal of the offence of buggery) in 1984. His Honour said (at 442):
"That section was repealed in 1984, but a charge pursuant to it is still permitted by s 30 of the Interpretation Act 1987 (NSW)".
56 His Honour did not suggest that there could still be a charge, a conviction for the charge, but that no sentence could or should be imposed by reason of s 55 or for any other reason. Such a result would be surprising. It would offer little comfort to the victim, nor any corresponding benefit to the public to have such a serious conviction found, indeed, even the subject of a plea, but without punishment for it. In my view if there is no impediment to the continued prosecution of buggery offences committed prior to 1984, it follows that then there is no restriction on the court's power to impose punishment on conviction, for such an offence.
57 In my view the submissions advanced by Mr Byrne in respect of the first and second counts of the indictment should be rejected.