Sillery v The Queen

(1) A person who commits hijacking is guilty of an offence against this section if the circumstances referred to in a paragraph of the next succeeding sub-section are applicable, whether or not another of those paragraphs is applicable.

(2) The circumstances in which the last preceding sub-section applies are -

(a) where the hijacking is committed on board an aircraft that is in flight, within the meaning of the Convention, and the Convention requires Australia to make it punishable;

(b) where the hijacking is committed on board an aircraft engaged in a prescribed flight;

(c) where the hijacking is committed on board a Commonwealth aircraft;

(d) where the hijacking is committed on board an aircraft that is owned or operated by the government of a country other than Australia, or of a part of such a country, and is in Australia or is engaged in a flight that commenced in Australia or a flight that commenced outside Australia and ends, or is intended to end, in Australia; or

(e) where the hijacking is committed outside Australia by an Australian citizen on board an aircraft that would be considered to be in flight if the Convention were applicable.

(3) The punishment for an offence against this section is imprisonment for life.

(4) A person is not liable to be tried for an offence against this section by virtue of paragraph (a) of sub-section (2) of this section unless the offence is one over which Australia is required by Article 4 of the Convention to establish its jurisdiction.

The expression "commits hijacking" is defined by s. 7 of the Act, which is in the following terms:

For the purposes of this Act, a person commits hijacking if, while on board an aircraft, he -

(a) unlawfully, by force or threat of force, or by any form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act; or

(b) is an accomplice of a person who performs or attempts to perform any such act.

Other expressions used in s. 8 are defined in s. 3, but it is unnecessary for present purposes to consider them. It need only be added that the Act was passed to give effect to an international Convention, which is set out in the schedule to the Act.

A device commonly used in the drafting of Commonwealth statutes is to set out a penalty at the foot of a section or sub-section of an Act which creates an offence. Section 41 of the Acts Interpretation Act 1901 Cth, as amended, provides that the penalty so set out shall indicate that any contravention of the section or of the sub-section respectively shall be an offence against the Act "punishable upon conviction by a penalty not exceeding the penalty mentioned". However, s. 41 provides no assistance in the construction of s. 8. The provisions of s. 8(3) do not appear at the foot of s. 8, and sub-s. (3) of s. 8 does not provide a penalty for a contravention of that sub-section - the penalty provided is for a contravention of the section as a whole, or possibly of sub-s. (1). Section 41 therefore has no application; it does not require s. 8(3) to be read as indicating that an offence against s. 8 is punishable by a penalty not exceeding life imprisonment. The meaning of s. 8(3) must be found in the words of that sub-section itself, read of course in the context provided by the Act.

The words of s. 8(3) are not unambiguous, and provide no sure answer to the question whether "the punishment" means the penalty that may be inflicted, that is, the maximum punishment, or the penalty that must be inflicted, that is, the only punishment. It is not without significance that s. 8(3) departs from the forms that have been used by legislatures in Australia and the United Kingdom in those cases, nowadays rare, where it is intended to provide a fixed and irreducible penalty of life imprisonment. Some statutes, for example, provide that a person convicted of murder, "shall be sentenced to imprisonment for life" (The Murder (Abolition of the Death Penalty) Act 1965 UK, s. 1) or "shall be sentenced to imprisonment for the term of his natural life" (Criminal Code Tas, s. 158) or "shall be imprisoned for life" (Criminal Law Consolidation Act 1935 SA, as amended, s. 11). Words in that form make the intention of the legislature clear beyond any doubt. Some other statutes provide that a person convicted of murder is "liable" to imprisonment (or penal servitude) for life: see Criminal Code Q, s. 305, Criminal Code WA, s. 282(b), Crimes Act 1900 NSW, as amended, s. 19 and Crimes Act 1958 Vic, as amended, s. 3. The expression "liable to imprisonment for life" is itself not free from ambiguity, and may suggest that there is a discretion as to whether the punishment should be imposed [1] . However, the statutes mentioned contain other provisions which assist in resolving any ambiguities to which the use of the word "liable" may give rise. The Criminal Code Q, by s. 19, the Criminal Code WA, by s. 19, and the Crimes Act NSW, by s. 442, provide that a person liable to imprisonment (or penal servitude) for life may be sentenced to imprisonment (or penal servitude) for a lesser period, but the provisions of those sections are expressly declared to be inapplicable in the case of murder. The Crimes Act Vic uses the expression "shall be liable to imprisonment for a term of not more than years" when it intends to fix a maximum rather than a mandatory sentence. In all these instances, the legislature has made it clear when it intends that it should be mandatory to impose a life sentence. In s. 24 of the Crimes Act 1914 Cth, as amended, by the Death Penalty Abolition Act 1973 Cth, it is provided that a person guilty of treason shall be liable to the penalty of imprisonment for life, and when in other sections it is intended to provide a maximum penalty the device suggested by s. 41 of the Acts Interpretation Act is employed. We are not now concerned to consider the effect of s. 24. What is relevant for present purposes is that the expression used in the Act - "the punishment is imprisonment for life" - is not one that has been used in other statutes when it has been intended to provide for a mandatory sentence of life imprisonment.

1. cf. O'Keefe v Calwell (1949), 77 C.L.R. 261, at p. 295.

There are strong reasons for understanding the ambiguous words of s. 8(3) as intended to provide for a maximum punishment. To construe s. 8(3) as providing for a mandatory punishment would lead to results that would be plainly unreasonable and unjust. It is true that hijacking is generally a most serious crime, which ought to be punished by severe penalties, as Art. 2 of the Convention recognizes. However, even in the case of such a crime there may exist wide differences in the degree of culpability of particular offenders, so that in principle there is every reason for allowing a discretion to the judge of trial to impose an appropriate sentence not exceeding the statutory maximum. One may compare, for example, the case of an unarmed drunken man who seeks to take control of an aircraft by the use of his fists with that of a terrorist armed with a bomb. What is even more important is that the offence created by s. 8 of the Act covers a variety of circumstances, including an attempt to exercise control of an aircraft - at least if it is a Commonwealth aircraft - which is not in flight. An attempt made in the course of an industrial dispute to exercise control of an aircraft which is on the ground and which contains no passengers might come within the definition, and although actions of that kind might well be serious, they would not normally be thought to warrant the penalty of life imprisonment in every case. Indeed it is difficult to imagine any good reason for resolving an ambiguity of this kind by construing a statute as providing for a mandatory sentence of life imprisonment. The provision of a maximum punishment would allow the trial judge to exercise a proper discretion as to sentence in the light of all the circumstances, and this is particularly desirable where a number of different acts, some much more blameworthy than others, fall within the definition of the crime. If it is intended to provide a mandatory penalty, clear words can and should be used.

For these reasons in my opinion s. 8(3), on its proper construction, provides for a maximum punishment and not a mandatory punishment. The learned trial judge had a discretion as to the sentence that should be imposed, but he did not exercise that discretion because he thought that he was bound to impose a sentence of life imprisonment.

I would therefore grant special leave to appeal and would allow the appeal. The matter should be remitted to the learned trial judge to impose such sentence as in his discretion seems proper in the light of the material before him.

The applicant was found guilty by a jury in the Supreme Court of Queensland on 7 January 1980 of hijacking contrary to s. 8 of the Crimes (Hijacking of Aircraft) Act 1972 Cth, as amended, ("the Act"). He had attempted to take control of a large T.A.A. commercial flight carrying forty-one passengers between Coolangatta and Brisbane, using a loaded sawn-off shot gun to menace every member of the flight crew. Because of this, both the flight path and the altitude at which the plane flew had not been authorized, and most of the usual safety checks were not carried out. For a short period, the plane was not under any control. It eventually landed down wind in the wrong direction. No physical harm was done, but the lives of the passengers, the crew, and person residing in Brisbane beneath the plane's path were at grave risk.

Section 8(3) of the Act provides that: "The punishment for an offence against this section is imprisonment for life." When the trial judge was hearing argument on sentence, the question arose whether he had any discretion not to impose life imprisonment. The Crown asserted there was no discretion, that life imprisonment was mandatory. The applicant's counsel contended that there was discretion - that life imprisonment was the maximum but not mandatory. The problem was acute because the trial judge said during argument that, while he regarded the offence as serious, he would not impose life imprisonment if it were a maximum rather than mandatory. He held, however, that s. 8(3) was mandatory and imposed a sentence of life imprisonment (which he ordered to be served at hard labour because he was told that under the applicable prison system this was for the prisoner's benefit).

Mr. Sillery made application to the Court of Criminal Appeal for leave to appeal against his sentence. On 17 June 1980, that Court dismissed his appeal, holding that the penalty was mandatory. He now seeks special leave to appeal against the sentence.

In modern times, nearly every statutory criminal penalty is a maximum. Courts are almost always vested with discretion to impose any penalty not exceeding a maximum and the discretion is generally amplified by a range of alternatives, such as not proceeding to a conviction, fine instead of imprisonment, bond to be of good behaviour and suspended sentence (see Crimes Act 1914 Cth, ss. 16, 19B, 20). Glanville Williams points out that in England and Wales the only crimes for which punishment is mandatory are murder (life imprisonment) and treason (death) [2] . Smith and Hogan state that the traditional attitude of the common law and of Parliament has been to recognize

that the imperfections of definition are such that an act which is within the definition of the crime may be morally blameless and deserving of no punishment. Thus it is the almost invariable practice of Parliament to fix a maximum but no minimum punishment and to leave it to the judge or magistrate to fix a sentence varying from an absolute discharge to the statutory maximum. The only significant exception to this rule is murder, where the court is required to impose a sentence of life imprisonment. [3] 1. Textbook of Criminal Law (1978), p. 18. 2. Criminal Law, 4th ed. (1978), p. 5.

The policy of maximum and not mandatory penalties is so pervasive that it should be presumed that any penalty is intended as a maximum; very clear words would be necessary to displace this presumption. The presumption is even stronger when a heavy penalty is applicable to a range of offences differing in nature and gravity so that although the maximum might be appropriate for some, it would be manifestly oppressive for others. Otherwise, the law would be Draconian. The Athenian lawmaker Draco is reputed to have imposed for all offences, even the most trifling, the penalty appropriate for the most severe so that there was only one punishment.

The Act's penalty provision is unusual. Counsel informed us that no similar form existed in any legislation which had come to their notice. The penalty is applicable to extremely serious offences, such as the classical skyjacking (that is, seizure of a plane in flight), which have given rise to great international concern expressed in various international resolutions and conventions including the Hague Convention of 1970 for the Suppression of Unlawful Seizure of Aircraft, which is a schedule to the Act. However, the Act goes beyond the scope of the Convention, and s. 8 apparently could also apply to offences in relation to a Commonwealth aircraft which is on the ground with no passengers or crew and is simply the subject of an industrial dispute. Apart from industrial disputes, the section extends to conduct which, even on an extremely harsh view, could not reasonably be punished by life imprisonment.

The Crown contends that the words of s. 8(3) read literally can only mean that the penalty is mandatory. But s. 8(3) should be read in the context of the whole Act and in the light of the fact that the penalty is applicable to a range of offences varying in seriousness. The general presumption is that legislation affecting the liberty of the person is to be construed favourably to the person: "The principles of interpretation require that, in case of doubt, that meaning shall be adopted which will avoid harshness and will give the Courts authority to do what appears just in each particular case." [4] . If the penalty is mandatory, the draftsman has contravened an elementary principle of drafting by requiring the imposition of the same penalty for different offences which are not of the same nature and gravity [5] .

1. Dixon J. in Byrne v McLeod (1934), 52 C.L.R. 1, at p. 8. 2. See Ilbert, Legislative Methods and Forms (1901), p. 249.

These considerations alone would be enough to justify reading s. 8(3) as providing a maximum penalty. However, if it is regarded as ambiguous, the ambiguity needs to be resolved. The sentencing judge and the Court of Criminal Appeal both referred to the fact that when the legislation was being debated, Parliament was informed that the penalty was a maximum. The accepted method of informing Parliament of the effect of a measure is the second reading speech by the person having the carriage of the Bill. Where the measure is a government one, the second reading speech by the Minister in charge of the Bill is the government explanation of and assurance to the House of the effect of the Bill, if enacted. In the second reading speech on the Bill for this Act on 11 October 1972, the Attorney-General, Senator the Hon. Ivor Greenwood Q.C. informed the Senate that "The Bill provides that the maximum punishment for hijacking is imprisonment for life" [6] . There was no other reference to this aspect and the measure passed without dissent, and was transmitted to the House of Representatives where the Hon. Nigel Bowen Q.C. (who had charge of the Bill on behalf of the Government) in his second reading speech also informed the House that it was a maximum penalty [7] . Again there was no other reference to this aspect and the measure passed without dissent.

1. Parliamentary Debates, Vol. 54 (1972), at p. 1416. 2. Parliamentary Debates, Vol. 81 (1972), at p. 3316.

In Commissioner for Prices and Consumer Affairs (S.A.) v Charles Moore (Aust.) Ltd. [8] I expressed the view that parliamentary history may be considered in interpreting an Act if there is an ambiguity or in very exceptional circumstances, but should be disregarded unless it clearly discloses the legislative intention. In this instance, the legislators' intention was quite clear; the measure was passed on the basis that s. 8(3) provided a maximum penalty.

In any event there are very exceptional circumstances which justify interpreting it in the light of its parliamentary history. The legislation affects the liberty of the person to the greatest extent now possible under the laws of the Commonwealth (see Death Penalty Abolition Act 1973) - it exposes the person to imprisonment for life which can apply to less serious as well as grave offences. Also in this, the first case in which the Act has come before the courts, the Crown (that is, the Government) has asserted (in the Supreme Court, in the Court of Criminal Appeal, and in this Court) that the penalty provision is to be read in a sense which contradicts its assertions to both Houses of Parliament. It is not a case of the courts insisting, over submissions to the contrary by both accused and Crown, that the legislation unambiguously imposes a mandatory penalty. It is not fair to legislators and tends to undermine the standing of Parliament; it is inconsistent with a proper relationship between the three branches of government.

The Crown argued that although the penalty of life imprisonment would be excessive for some of the offences covered, Parliament intended to leave those to be dealt with by the application of executive discretion to reduce the penalty by remission of whole or part of the sentence. This suggestion is very dangerous to civil liberty. It would mean the judicial sentence would be a sham, and the real sentence would be by the Executive. This goes much further than the traditional exercise of executive clemency. It raises a question of whether legislation so construed would violate the constitutional separation of powers. If applied generally it would call for an executive parallel to the judicial processes of hearing and determination involved in sentencing.

Construed as mandatory the punishment of life imprisonment in relation to the less serious offences covered by the definition of hijacking would be cruel and unusual, because it is excessive and serves no valid legislative purpose [9] .

1. See Furman v Georgia (1972), 408 U.S. 238, at p. 274; Weems v United States (1910), 217 U.S. 349, at p. 381.

The Constitution and written laws are superimposed on a fabric in which "silent constitutional principles" operate [10] . Important in this fabric are the principles which emerged from the revolutionary struggles carried on by various classes in England against arbitrary government which culminated in the English Bill of Rights 1688 UK. The Bill of Rights set out the conditions on which constitutional monarchy was permitted to continue. Many, such as those dealing with religion, are relevant only to circumstances of the United Kingdom. Others have become the inheritance of former British colonies. One is the provision "excessive baile ought not to be required nor excessive fines imposed nor cruell and unusual punishments inflicted." These words were taken over to the American colonies and were included in the constitutions of the emerging States (e.g., Declaration of Rights 1776, of Virginia, Delaware, Maryland and North Carolina). They eventually became Amendment VIII of the United States Constitution in the form, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

1. See The Commonwealth v Kreglinger & Furnau Ltd. (1926), 37 C.L.R. 393, at p. 413; Cooper v Stuart (1889), 14 App. Cas. 286, at p. 293.

As this provision of the Bill of Rights 1688 forms part of the Australian constitutional fabric it would be improbable in the extreme that Parliament would attempt to require or permit the infliction of cruel and unusual punishment. Therefore an extremely heavy presumption arises that it has not done so, so heavy that only unmistakeable language could displace it. In the Act under consideration a word such as "mandatory" would be needed.

If Parliament purported to require the infliction of cruel and unusual punishment, there would be a question of its competence to pass such a law. Apart from more general considerations (which might apply to other legislative, executive and judicial branches of government in Australia) the Federal Parliament has no express power to make criminal laws. Such a power is implied as incidental to the express legislative powers. A power to legislate for infliction of cruel and unusual punishment should not be implied into the legislative powers expressed in the Australian Constitution. Added to this, all the relevant express powers to make laws with respect to enumerated subjects are qualified by the words "for the peace, order and good government of the Commonwealth" (see ss. 51, 52). Generally these words are ignored as formal and not limiting (although see Evatt J. in Trustees Executors & Agency Co. Ltd. v Federal Commissioner of Taxation [11] ). In the light of our constitutional history any law which requires or authorizes infliction of cruel and unusual punishment should be regarded as transcending the limits of power expressed in the words "peace, order, and good government".

However, Parliament has not purported to require or authorize infliction of cruel and unusual punishment; the punishment of imprisonment for life means what the Parliament was informed that it meant, a maximum.

Sentences should take into account the circumstances of the offence and other relevant considerations in aggravation or mitigation. The applicant imperilled passengers, crew and others by taking control of an aircraft in flight. On the face of it this offence calls for severe punishment. The trial judge seemed to think there were mitigating circumstances which call for less than life imprisonment, so the matter should be remitted for resentencing.

Application for special leave should be granted; the appeal should be allowed; the case should be remitted to the Supreme Court for sentencing.

I have had the advantage of reading the reasons for judgment of my brother Gibbs. I agree with those reasons and his conclusion that special leave to appeal should be granted and the appeal allowed.

At Brisbane, on 7 January 1980, the applicant was convicted of the offence of committing hijacking on board a Commonwealth aircraft, contrary to s. 8 of the Crimes (Hijacking of Aircraft) Act 1972 Cth ("the Act"). The trial judge sentenced him to imprisonment for life, believing that the provisions of the Act allowed him no discretion to fix a term of years. The short and important, but difficult, question in these proceedings is whether he was correct in that belief.

The conduct of the applicant called for stern punishment. At the time of the hijack the aircraft was in flight, carrying the crew and forty-one passengers. The applicant was armed with a loaded sawn-off shot gun.

The primary object of the Act is to give effect to the international Convention for the Suppression of Unlawful Seizure of Aircraft. But it goes further than that, and punishes the unlawful seizure of aircraft and acts of violence on board aircraft in circumstances to which the Convention does not apply.

It will be convenient to set out the relevant provisions of the Act. Section 3(1) provides:

In this Act, unless the contrary intention appears -

"Commonwealth aircraft" means an aircraft that is owned by, or is in the possession or control of, the Commonwealth or an authority of the Commonwealth, and includes a defence aircraft;

6. For the purposes of this Act, a person commits hijacking if, while on board an aircraft, he -

(a) unlawfully, by force or threat of force, or by any form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act; or

(b) is an accomplice of a person who performs or attempts to perform any such act.

(1) A person who commits hijacking is guilty of an offence against this section if the circumstances referred to in a paragraph of the next succeeding sub-section are applicable, whether or not another of those paragraphs is applicable.

(2) The circumstances in which the last preceding sub-section applies are -

(a) where the hijacking is committed on board an aircraft that is in flight, within the meaning of the Convention, and the Convention requires Australia to make it punishable;

(b) where the hijacking is committed on board an aircraft engaged in a prescribed flight;

(c) where the hijacking is committed on board a Commonwealth aircraft;

(d) where the hijacking is committed on board an aircraft that is owned or operated by the government of a country other than Australia, or of a part of such a country, and is in Australia or is engaged in a flight that commenced in Australia or a flight that commenced outside Australia and ends, or is intended to end, in Australia; or

(e) where the hijacking is committed outside Australia by an Australian citizen on board an aircraft that would be considered to be in flight if the Convention were applicable.

(3) The punishment for an offence against this section is imprisonment for life.

(4) A person is not liable to be tried for an offence against this section by virtue of paragraph (a) of sub-section (2) of this section unless the offence is one over which Australia is required by Article 4 of the Convention to establish its jurisdiction.

It is unnecessary to refer to the terms of the Convention, save to mention that Art. 2 obliges each contracting State to make the unlawful seizure of aircraft in flight (as defined in Art. 3) an offence punishable by severe penalties.

In the course of argument, reference was made to s. 41 of the Acts Interpretation Act 1901 Cth, which reads as follows:

(b) at the foot of any sub-section of any section of any Act, but not at the foot of the section,

shall indicate that any contravention of the section or of the sub-section respectively, whether by act or omission, shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned:

Provided that where the penalty is expressed to apply to a part only of the section or sub-section, it shall apply to that part only.

The principal argument advanced by Mr. Pincus Q.C., for the applicant is that the policy of allowing courts a discretion in the choice of an appropriate punishment is so well established that the legislature must be taken to be aware of it, with the consequence that a legislative intent to impose a mandatory sentence will be declared in express terms. The mere declaration of a term of imprisonment as the punishment for an offence, so the argument runs, will import as a matter of its proper construction the element of discretion to impose any term not exceeding that which is prescribed. Alternatively, it is argued that the bald statement will import an ambiguity, which must then be resolved in favour of the offender by allowing the Court a discretion to impose a lesser sentence in appropriate circumstances.

Mr. Pincus describes, in my opinion rightly, the effect of s. 41 of the Acts Interpretation Act as neutral. It is directed to the interpretation of the common drafting technique by which the conduct which is prohibited is set out in the body of a section or sub-section and is followed on a separate line thereunder with the words which are referable to the penalty for offending against the section. In my opinion, it has no application beyond that which its words so clearly prescribe for it. It cannot be interpreted as if it referred, as does, for example, the comparable provision in the Interpretation Act 1918 WA, to the penalty set out "in, or at the foot of, any section of any Act" or "in, or at the foot of, any part of any section of any Act" (s. 29). Nor is it possible, in my opinion, to extract from s. 41 any principle of interpretation of general application which by analogy can be related to the problem in the present case. It is simply a shortening provision, and nothing more.

That is not to say that s. 41 should be excluded in a case which is capable of attracting its operation. As Dixon J. remarked in Byrne v McLeod [12] : "But certainty and not surmise is required before adopting an interpretation which, not only excludes the Acts Interpretation Act, but, in doing so, operates to impose a rigid and possibly harsh penalty." However, those words were said in a case where the penalty was set out at the foot of a section; the contest was as to the meaning of the words used to describe the penalty. In the present case, the penalty is contained within a sub-section. It is no more "at the foot of" the sub-section, or the section, than is the penalty of imprisonment for life which is contained in s. 24(1) of the Crimes Act 1914 Cth for the crime of treason, and which Mr. Pincus concedes is a mandatory irreducible punishment.

I return to the central submission for the applicant, that by refraining from inserting any words to indicate that the punishment of life imprisonment is irreducible the legislature has clearly evinced its intention to prescribe only a maximum sentence. Mr. Pincus supports the argument by adverting to the range of conduct which is covered by the offence of hijacking an aircraft. If the Act had confined its attention to the conduct which is the subject of the Convention it might well have been inferred that any violence directed to the unlawful seizure or attempt to seize control of an aircraft in flight is so fraught with danger to life and property that it merits a mandatory sentence of life imprisonment. But that is not the case. Paragraphs (c) and (d) of s. 8(2) define the elements of an offence of hijacking which do not require that the aircraft be in flight at the time of the offence. The offence predicated by those paragraphs could be satisfied by the unlawful seizure or attempt to seize control of an aircraft whilst it is stationary on the ground with no persons on board other than the offender, provided only that the aircraft is either a Commonwealth aircraft or is one owned or operated by the government of another country and is in Australia. However committed, the offence requires the use of force, or threat of force, or some form of intimidation. Nevertheless, one can contemplate the unlawful seizure on the ground of an aircraft of the prescribed description, perhaps in circumstances of industrial confrontation or otherwise, which would prima facie establish the offence of hijacking under the Act and yet not seem to warrant a mandatory punishment of life imprisonment. Of course, it might be expected that in such circumstances different charges, more appropriate to those circumstances, would be laid. But, as Mr. Pincus submits, the possibility remains, and forms part of that context from which the intention of the legislature as expressed in s. 8(3) is to be discerned.

In essence, the applicant's primary submission is that there is a principle of interpretation which requires that a legislative provision which simply says that the punishment for a particular offence is imprisonment for life be understood to mean "imprisonment for life, or for any term of years". It may be accepted that any term of years is a "lesser" term than "life" [13] . But is there such a principle? I do not think so. It seems to me that the very desirable object of mitigating an otherwise harsh operation of the criminal law by enlarging the discretion of the court to make the punishment fit the crime, has always been pursued by the legislature in express words. The Acts Interpretation Act, s. 41 is one particular expression of that practice, resulting in a style of drafting Commonwealth statutes which is clearly designed to attract its operation, and of which there are many examples, such as the Crimes (Aircraft) Act 1963 Cth. It may be observed that in the Crimes Act the legislature has made express provision for the mitigation of penalty in terms which go beyond the provisions of s. 41, allowing in appropriate cases for the imposition of a fine in lieu of a term of imprisonment (s. 16). On the other hand, it is interesting to note that in the Crimes (Protection of Aircraft) Act 1973 Cth, in a case where it was perhaps inappropriate to rely on the Acts Interpretation Act, the legislature expresses the penalty for an offence against the Act as imprisonment for a term "not exceeding" fourteen years, or seven years, as the case may be (s. 7).

The same general practice is evident in relation to Acts of the State legislatures. I have already referred to the Interpretation Act WA. Similarly, the Western Australian Criminal Code makes express provision in s. 19. It is in the face of applicable provisions such as these that the legislature is obliged to clearly identify those offences in relation to which the punishment is not to be reduced: e.g., see the Criminal Code WA, s. 282(b). Counsel for the applicant has been unable to point to any legislative provision which would authorize the Court to impose a lesser punishment than life imprisonment for the offence of which he was convicted. In my opinion, therefore, if the legislature intended that the punishment for hijacking an aircraft should be a mandatory one, it was unnecessary for it to declare such an intention in express words. The first argument fails.

Mr. Pincus then argues that, viewed in its context, the provision prescribing the punishment is uncertain. He calls in aid the admirable principle succinctly enunciated by Dixon J. in Byrne v McLeod [14] : "The principles of interpretation require that, in case of doubt, that meaning shall be adopted which will avoid harshness and will give the Courts authority to do what appears just in each particular case." That statement is undoubtedly correct, but it will be noted that it has application "in case of doubt". The difficulty confronting the applicant is to expose an ambiguity lurking in what appears on its face to be a perfectly clear statement. That difficulty appears to me to be plainly insurmountable. Whatever the Parliament may have in fact intended, it has expressed its mind in such clear terms that in my opinion this Court has no option but to so declare it. Nor is it a surprising or incongruous conclusion that the Parliament, obliged by the Convention to provide a severe penalty, declares that the punishment for hijacking an aircraft is imprisonment for life, neither more nor less.

I therefore find myself in agreement, with respect, with the trial judge and with the decision of the Court of Criminal Appeal (Lucas, Douglas and Sheahan JJ.).

I would grant special leave to appeal, and dismiss the appeal.

In the Supreme Court of Queensland, the applicant was convicted of committing hijacking on board a Commonwealth aircraft, an offence created by s. 8 of the Crimes (Hijacking of Aircraft) Act 1972 Cth, and he was sentenced to imprisonment with hard labour for life. The Court of Criminal Appeal dismissed an appeal against sentence, holding that s. 8(3) prescribed a mandatory not a maximum penalty tor the offence. That sub-section reads: "The punishment for an offence against this section is imprisonment for life."

It was submitted that the legislature could not have intended life imprisonment to be the punishment in all cases which fall within the definition of the crime of hijacking. That definition might be made to apply to some cases where control of an aircraft is seized when the aircraft is not in flight, or when it has no passengers aboard, and (so the argument ran) life imprisonment would be manifestly too severe a penalty in some cases falling within the statutory definition of the offence.

At common law, the courts exercised a discretion in sentencing offenders to imprisonment for misdemeanours [15] , and in the imposition of statutory penalties legislatures have been accustomed to vest in courts a discretion to impose a lesser penalty than the maximum provided. Thus s. 41 of the Acts Interpretation Act 1901 Cth vests the customary discretion in courts sentencing offenders under statutes which define penalties for offences created by those statutes, and which are so drawn as to attract the operation of s. 41. Section 8(3) is not so drawn.

1. Verrier v Director of Public Prosecutions , [1967] 2 A.C. 195.

A discretionary power to be exercised in imposing a statutory penalty must be found in the particular provision or complex of provisions which prescribes the penalty [16] ; and the extent of the discretionary power depends upon the terms of the statute which confers it [17] . The language of s. 8(3) is not apt to vest a discretion in a sentencing court and I do not construe it as vesting a discretion to impose a lesser punishment than imprisonment for life. A discretionary power would be conferred, of course, if imprisonment for life were stated to be a maximum punishment, but s. 8(3) does not say so. By prescribing imprisonment for life to be "the" punishment for "an" offence, s. 8(3) defines that punishment to be the punishment to be imposed for any offence against s. 8.

1. Byrne v McLeod (1934), 52 C.L.R. 1. 2. Murray v Thompson (1888), 22 Q.B.D. 142.

In my judgment, the learned trial judge and the Court of Criminal Appeal were right to hold that s. 8(3) prescribed a mandatory penalty of life imprisonment. Although the general importance of the question warrants the grant of special leave to appeal, the appeal should be dismissed.

[Editor's Note: On 6 July 1981, the applicant was sentenced by Connolly J. in the Supreme Court of Queensland to imprisonment for a term of ten years.]